Childcare Developments Group Pty Ltd trading as Childcare Developments Group v The Hills Shire Council

[2024] NSWLEC 1813

Land and Environment Court

New South Wales

Medium Neutral Citation:

Childcare Developments Group Pty Ltd trading as Childcare Developments Group v The Hills Shire Council [2024] NSWLEC 1813

Hearing dates:

Conciliation conference on 21 October 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Class 1

Before:

Young AC

Decision:

The Court orders that:

(1) The appeal is upheld in part.

(2) Pursuant to ss 8.18(4)(b) and 8.18(4)(f) of the Environmental Planning and Assessment Act 1979, Development Control Order No-320795 issued by The Hills Shire Council on 4 July 2024 is modified in accordance with Annexure A.

Catchwords:

APPEAL – development control order – childcare centre – remedial works – conciliation conference – agreement reached to modified development control order

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Childcare Developments Group Pty Ltd trading as Childcare Developments Group (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Matthew Folbigg Lawyers (Respondent)

File Number(s):

2024/282141

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant appeals against the development control order (the order) pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) that was issued by The Hills Shire Council on 4 July 2024 to cease all work in respect to remedial construction works at a childcare centre located at 79 Showground Road, Castle Hill NSW 2154.

2. The order was issued pursuant to s 9.34(1) of the EPA Act, which allows a development control order to be issued to “stop building work…carried out in contravention of this Act”, as specified in the table at Pt 1 of Sch 5 of the EPA Act.

3. Without admission, and among other matters, the Applicant contended that the development control was defective and was beyond power to the extent it prohibited work that might have otherwise been lawfully carried out without development consent.

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 21 October 2024. I presided over the conciliation conference.

5. On 11 December 2024, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement is that the order is modified to cease all building works on the site until such time as lawful development consents or approvals are granted for these works, excluding installation of roofing materials and external cladding to enable the two buildings on the site to be made weatherproof while the Applicant seeks these consents or approvals from Council.

6. 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.

7. Section 8.18(4) of the EPA Act gives the Court broad powers on appeal in respect of development control orders 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.

8. I am satisfied that the power under ss 8.18(4)(b) and 8.18(4)(f) is sufficiently broad to enable the Court to make orders to modify the development control order in the manner agreed by the parties.

9. I am therefore satisfied that the decision to make orders to modify the order is a decision that the Court can make in the proper exercise of its functions, for the reason that there is a statutory basis under Item 2 Stop Work Order of Pt 1 of Sch 5 to the EPA Act to issue a development control order, and s 8.18(4) gives the Court the power, on the hearing of the appeal, to modify the development control order or make such other order “with respect to the development control order as the Court thinks fit”.

10. 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. 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.

Orders

11. The Court orders:

1. The appeal is upheld in part.

2. Pursuant to ss 8.18(4)(b) and 8.18(4)(f) of the Environmental Planning and Assessment Act 1979, Development Control Order No-320795 issued by The Hills Shire Council on 4 July 2024 is modified in accordance with Annexure A.

……………………………

M Young

Acting Commissioner of the Court

Annexure A

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Decision last updated: 17 December 2024