Blackwell v Shoalhaven City Council

[2023] NSWLEC 1476

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blackwell v Shoalhaven City Council [2023] NSWLEC 1476

Hearing dates:

Conciliation Conference on 28 July 2023

Date of orders:

23 August 2023

Decision date:

23 August 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Order dated 1 February 2023 is modified in accordance with the Order at Annexure A.

(3) No order as to costs.

Catchwords:

APPEAL – development control order – stop use order – conciliation conference – agreement reached – order modified

Legislation Cited:

Environmental Planning and Assessment Act 1979, Pt 1, Sch 5, ss 8.18, 9.34, 9.35

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Alan Thomas Blackwell (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
J Burrell (Solicitor) (Applicant)
A Menyhart (Solicitor) (Respondent)

Solicitors:
Burrell Solicitors ILP (Applicant)
BAL Lawyers (Respondent)

File Number(s):

2023/61784

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development control order issued by Shoalhaven City Council (Council) and dated 1 February 2023. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. The order is a stop use order, issued pursuant to Item 1 of Part 1 of Schedule 5.

2. The order concerned a 200m² shed located on lot 142 of DP 1000567 known as 417 Back Forest Road, Far Meadow, NSW (the subject premises). The order required the applicant to cause the use of the shed to stop within four (4) weeks of the date of the order and no later than 5pm, 1 March 2023.

3. The applicant is the owner of the subject premises.

Conciliation undertaken and parties reach an agreement

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 July 2023. I presided over the conciliation conference.

5. After the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

Jurisdiction

Further particulars of the matter

6. On 7 August 2023, the parties provided a jurisdictional statement with the objective of demonstrating that the parties’ decision is one the Court could have made in the proper exercise of its function. In this regard I note the following.

7. The Council is a relevant enforcement authority under s 9.35 of the EPA Act and therefore has the power to give orders in accordance with that section. Under s 9.34(1) of the EPA Act the Council has the power to give general orders in accordance with the table to Part 1 of Schedule 5.

8. Item 1 in the table to Part 1 of Schedule 5 of the EPA Act allows the Council to issue a Stop Use Order to require the use of premises to cease where it is being used for a purpose for which a planning approval is required but has not been obtained, as is the case in this instance. The order may be given to the owner of the premises.

9. In this instance, the reasons for the giving of the order primarily relate to the Council’s concern as to the structural adequacy of the shed and compliance with the National Construction Code. The modified order reflects Council’s practice to revoke an order which has been issued in response to the Council’s concerns regarding structural adequacy of an unapproved structure if and when a Building Information Certificate is issued for the structure by the Council.

10. The Council has agreed to modify the order to provide that it is revoked if a Building Information Certificate is issued for the shed. The applicant has agreed to the proposed amendment.

Making a modification to the order is within power

11. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

12. As the presiding Commissioner, I am satisfied that the decision to modify the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order.

13. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

14. The Court orders that:

1. The appeal is upheld.

2. The Order dated 1 February 2023 is modified in accordance with the Order at Annexure A.

3. No order as to costs.

P Walsh

Commissioner of the Court

61784.23 Annexure A

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Decision last updated: 23 August 2023