Carnavalesca Pty Ltd trading as Paragalli Haulage v Queanbeyan-Palerang Regional Council

[2024] NSWLEC 1567

Land and Environment Court

New South Wales

Medium Neutral Citation:

CARNAVALESCA Pty Ltd trading as Paragalli Haulage v Queanbeyan-Palerang Regional Council [2024] NSWLEC 1567

Hearing dates:

Conciliation Conference 18 July, 13 August 2024

Date of orders:

17 September 2024

Decision date:

17 September 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Control Order dated 4 January 2024 issued to the applicant in respect of premises at 6 and 14 Barber Street and 7 Wycombe Street, Queanbeyan East, is modified in accordance with Annexure A (Order).

(3)   The applicant has liberty to apply to extend the timeframe provided for compliance with the Order where reasonable steps have been taken to comply with the Order.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, ss 17, 34 Queanbeyan-Palerang Regional Local Environmental Plan 2022

Category:

Principal judgment

Parties:

Carnavalesca Pty Ltd trading as Paragalli Haulage (ACN 003 931 708) (Applicant)
Queanbeyan-Palerang Regional Council (Respondent)

Representation:

Counsel:
P Lane (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Ken Cush & Associates (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/38432

Publication restriction:

No

Judgment

COMMISSIONER:

1. This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (ON.2023.0133 dated 4 January 2024) issued by the respondent under s 9.34(1) and Part 1 of Schedule 5 of the EPA Act (DCO) to the applicant in relation to land identified as Lot 2 in Deposited Plan 865072, Lot 1 in Deposited Plan 773495 and Lot 61 in Deposited Plan 227837 and known as 6 and 14 Barber Street and 7 Wycombe Street, Queanbeyan East (Premises). The DCO comprised Order No 1 – Stop Use Order, which required the cessation of the use of the Site as a “landscaping supply business”.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Premises is zoned E4 General Industrial under the Queanbeyan-Palerang Regional Local Environmental Plan 2022 (QLEP).

4. At the time the DCO was issued, the applicant was (and presently is) operating a landscaping supply business on the Premises. The landscaping supply business use includes (collectively, the “Use”):

1. storing raw materials including sand, soil, gravel and bark mulch within storage bays;

2. the delivery of raw materials to the Premises by truck and dog trailers; and

3. the movement of front end loaders of trucks and trailers with raw material for delivery from the Premises.

5. It was the respondent’s contention that this Use:

1. required development consent and no such development consent had been obtained;

2. was causing adverse environmental impacts through the tracking of soil and sediment off site and entering adjoining stormwater systems; and

3. was producing a dust nuisance for off-site receptors.

6. The respondent issued a Notice of Proposed Order on 19 September 2023 (Notice).

7. Following responses to the Notice on behalf of the applicant on 16 October and 19 December 2023, the DCO was issued on 4 January 2024.

8. The applicant commenced Class 1 proceedings on 31 January 2024, being within the time period specified in s 8.18(3) of the EPA Act.

9. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 18 July 2024, adjourned on one occasion and then terminated on 22 August 2024. I presided over the conciliation conference.

10. Following the conciliation process, the parties reached agreement as to the resolution of the proceedings. The agreement reached is for the DCO to be modified (Modified Order). The Modified Order generally requires the applicant to cease use of the Premises as a landscaping supply business by 13 February 2026, unless development consent is granted for the use of the Premises as a landscaping supply business.

11. Separately, the applicant has provided an undertaking to the respondent dated 29 August 2024 (Undertaking) in relation to the way in which the Premises will be operated until such time as development consent for the use of the Premises as a landscaping supply business is obtained, or the use ceases, in accordance with the terms of the Modified Order.

12. The parties provided a signed s 34 agreement reflecting the above agreement on 3 September 2024 with an accompanying jurisdictional statement.

Jurisdictional considerations

13. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders modifying the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

14. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control 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.

15. It is clear that the Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

16. I am satisfied the DCO should be modified in the manner proposed by the parties on the basis that:

1. The Modified Order is agreed by the parties to be issued pursuant to Item 1 of Pt 1 of Sch 5 of the EPA Act, being a “stop use order”. The applicant is the “person using the premises” the subject of the Modified Order such that the applicant is able to be issued with the Modified Order pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act. I note that the applicant was also able to have been issued with the original DCO on the basis that it was similarly the person using the Premises for the purposes of the original DCO.

2. The Premises is being used for a purpose (being a landscaping supply business) for which a planning approval is required but has not been obtained, therefore falling within the scope of Column 2 of Item 1 in Part 1 of Sch 5 of the EPA Act. The Modified order is therefore in accordance with s 9.34 of the EPA Act.

3. The parties agree that the Modified Order, in conjunction with the Undertaking provided by the applicant, resolve the respondent’s concerns regarding adverse environmental impacts arising from the Use of the Premises.

17. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

18. The Court orders that:

1. The appeal is upheld.

2. Development Control Order dated 4 January 2024 issued to the applicant in respect of premises at 6 and 14 Barber Street and 7 Wycombe Street, Queanbeyan East, is modified in accordance with Annexure A (Order).

3. The applicant has liberty to apply to extend the timeframe provided for compliance with the Order where reasonable steps have been taken to comply with the Order.

N Targett

Commissioner of the Court

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Annexure A

Decision last updated: 17 September 2024