Deemay Enterprises Pty Limited v Port Stephens Council

[2020] NSWLEC 1613

Land and Environment Court

New South Wales

Medium Neutral Citation:

Deemay Enterprises Pty Limited v Port Stephens Council [2020] NSWLEC 1613

Hearing dates:

26 November 2020

Date of orders:

8 December 2020

Decision date:

08 December 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2) The Order dated 26 August 2019 is modified pursuant to s 8.18(4)(b) to require the following works:

(a)   The removal of the six (6) dwellings numbered 75 to 80 situated in the APZ and adjacent to the southern boundary of land described as Lot 175 DP 753204, 530 Gan Gan Road One Mile by 31 March 2021.

Catchwords:

APPEAL – development control order – modify the development control order under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 – site used as a manufactured home estate or seniors living development – structures on site constructed without approval

Legislation Cited:

COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Port Stephens Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Deemay Enterprises Pty Limited (Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
G Long (Solicitor) (Applicant)
A Pickup (Solicitor) (Respondent)

Solicitors:
Long Legal (Applicant)
Local Government Legal (Respondent)

File Number(s):

2019/296777

Publication restriction:

No

Judgment

Introduction

1. This is an appeal in relation to a Development Control Order (Order) issued by Council on 26 August 2019. The Order was a Stop Use Order (Item 1) and Demolish Works Order (Item 3) issued pursuant to Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2. The Stop Use Order required the recipient to stop the use of the site described as Lot 175 in DP 753204, known as 530 Gan Gan Road, One Mile (the site) for the purpose of a manufactured home estate or seniors living development and to cease allowing permitting or require the use of the site for access to Gan Gan Road by the adjoining site.

3. The Demolish Works Order required:

1. The removal of the concrete driveways from the road reserve between 530 Gan Gan Road and the carriageway of Gan Gan Road;

2. The removal of the manufactured home type structures located on the site; and

3. To remove any other structure from the site that does not benefit from development consent or is exempt from requiring development consent.

The statutory context

4. Under s 9.34(1)(a) of the EPA Act, a Development Control Order may be given in accordance with the Table to Pt 1 of Sch 5 provided the circumstances set out in the Table are satisfied.

5. In relation to the Stop Use Order, the Council contended that the site was being used as a manufactured home estate or seniors living development without approval. As such, a Stop Use Order was issued to the owner of the site requiring the owner to stop using the site for the purpose of a manufactured home estate or seniors living development within ninety (90) days of the date of the Order.

6. In relation to the Demolish Works Order, the concrete driveways, manufactured home type structures and other structures had been constructed on the site without approval. As such, a Demolish Works Order was issued to the owner of the site to remove the structures that do not benefit from a development consent within ninety days of the date of the Order. A ‘manufactured home estate’ is not a defined use under the Port Stephens Local Environmental Plan 2013 (PSLEP), and accordingly is not listed as a permissible use in the RE2 zone.

7. The appeal against the Council’s Order has been brought by the applicant pursuant to the provisions of s 8.18 of the EPA Act.

Background

8. The site is located within the One Mile tourist and residential precinct on the eastern side of Gan Gan Road and adjoins land zoned for conservation purposes to the south (Tomaree National Park) and to the east (Crown land). The lands to the north are zoned RE1 Public Recreation.

9. The site is zoned RE2 - Private Recreation pursuant to the PSLEP and adjoins an existing caravan park called “Middle Rock Holiday Resort” operated by the applicant.

10. In response to the Council’s Order, and the lodgement of this appeal, the applicant sought to regularise the existing use of the subject site by the lodgement of a development application (DA 16-2020-72-1). After assessment, on 21 February 2020, the Council granted a deferred commencement consent to the DA 16-2020-72-1. Relevantly, in approving the use of the site for nine moveable dwellings (long term sites, together with landscaping, internal roads, driveways, car parking and new stormwater infrastructure), the Council required before the consent became operative the removal of the existing six dwellings located in the southernmost part of the site within the asset protection area (APZ).

Modification of the Order

11. At the hearing, the parties reached agreement as to the terms of the orders for the removal of the six dwellings and invited me to modify the orders under s 8.18(4)(b) of the EPA Act. Section 8.18 of the EPA Act gives the Court power, on the hearing of an appeal, to modify the development control order with “any other order that the relevant enforcement authority who gave the order could have given”. The terms of the proposed order are:

“(1) The Appeal is upheld.

(2) The Order dated 26 August 2019 is modified to require the following works:

(a) The removal of the six (6) dwellings numbered 75 to 80 situated in the APZ and adjacent to the southern boundary by 31 March 2021.”

Consideration

12. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the Order should be issued.

13. Section 39 of the Land and Environment Court Act1979 (the Court Act) provides as follows:

39 Powers of Court on appeals

(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A) (Repealed)

(7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

14. In addition, as indicated, s 8.18(4) sets out the powers of the Court on an appeal against an order. Those powers are 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. The circumstances that led to the issue of the Order are set out in detail in the Council’s Statement of Facts and Contentions dated 23 October 2020. The evidence is that the dwellings are not presently occupied and that the applicant has no intention to allow such occupation. Nonetheless, they are unauthorised structures and situated in the APZ proximate to a national park. It is agreed that they should be removed. And, while the deferred commencement conditions of the DA require the removal of the dwellings for the consent to be operative, there is no fixed timeframe for that to occur. I am told that the applicant has five years to activate that DA (given the DA falls within the extended periods allowed under s 4.53 of the EPA Act (as amended by COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020)).

16. In those circumstances, it is appropriate that a shorter and fixed timeframe be imposed for the removal of the dwellings. I understand that the proposed timeframe is acceptable to the applicant. Moreover, the Court explained that if the dwellings are not removed in accordance with the modified control order which is consistent with the terms of Item 3 of the Sch 5 to the EPA Act, the Council may take action for contempt.

17. For the reasons outlined, I consider it is appropriate to allow the appeal and make the orders for the modified development control order pursuant to s 8.18(4)(b) in the manner agreed by the parties.

18. Accordingly, the Court orders that:

1. The appeal is upheld.

2. The Order dated 26 August 2019 is modified pursuant to s 8.18(4)(b) to require the following works:

1. The removal of the six (6) dwellings numbered 75 to 80 situated in the APZ and adjacent to the southern boundary of land described as Lot 175 DP 753204, 530 Gan Gan Road One Mile by 31 March 2021.

……………………….

S Dixon

Senior Commissioner of the Court

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Decision last updated: 08 December 2020