Douros v Queanbeyan-Palerang Regional Council

[2024] NSWLEC 1660

Land and Environment Court

New South Wales

Medium Neutral Citation:

Douros v Queanbeyan-Palerang Regional Council [2024] NSWLEC 1660

Hearing dates:

Conciliation conference on 23 September 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Control Order dated 12 February 2024 issued to the Applicants in respect of premises on Lot 40 in Deposited Plan 244439 and known as 8 Proud Place, Wamboin NSW 2620 be modified in accordance with Annexure A.

Catchwords:

DEVELOPMENT CONTROL ORDER – cease use -conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18, Div 9, Sch 5, Pt 6

Land and Environment Court Act 1979, ss 17, 34

Queanbeyan-Palerang Regional Council Local Environmental Plan 2022

Category:

Principal judgment

Parties:

Jim Douros (First Applicant)
Kerrie Douros (Second Applicant)
Queanbeyan-Palerang Regional Council (Respondent)

Representation:

Counsel:
K Mezinec (Solicitor) (Applicants)
K Mezinec R McCulloch (Solicitor) (Respondent)

Solicitors:
McCullough Robertson Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2024/90473

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against a Development Control Order reference no. ON.2023.0149 issued on 12 February 2024 (DCO) by the Respondent to the Applicants in respect of Lot 40 in Deposited Plan 244439 known as 8 Proud Place, Wamboin, NSW 2620 (Site).

2. The Applicants have been accessing the Site via an access gate and unauthorised road which connects onto Sutton Road, via a Queanbeyan-Palerang Regional Council’s ‘Development Control Zone’ which is situated on Lot 42 in Deposited Plan 244439.

Figure 1: Annexure A to the DCO – Stop Use Order dated 12 February 2024 showing unlawful access from the Site to Sutton Road

3. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. Queanbeyan-Palerang Regional Council (Council) issued the DCO pursuant to Div 9, Sch 5, Pt 1, Order 1 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The appeal has been filed pursuant to s 8.18(1) of the EPA Act, and within the time provisions of s 8.18(3)(a) of the EPA Act.

Legislation

Environmental Planning and Assessment Act 1979

8.18   Appeals concerning orders

(cf previous s 121ZK)

(1)  A person who is given a development control order may appeal to the Court against the order.

(2)  However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

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

(a)  revoke the development control order, or

(b)  modify the development control order, or

……

divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2].

9.34   Orders that may be given

(cf previous s 121B)

(1)  The development control orders that may be given under this Act are as follows—

(a) general orders in accordance with the table to Part 1 of Schedule 5,

……

(2)  The regulations may amend those tables.

(3)  A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate).

Note—

See also Part 4 of the Building Products (Safety) Act 2017.

s 9.34: Ins 2017 No 60, Sch 9.1 [2]. Am 2017 No 69, Sch 2.4 [4].

Schedule 5 Development Control Orders

Part 1 General orders

Column 1	Column 2		Column 3
To do what?	When?		To whom?
1	Stop Use Order To stop using premises or a building Not to conduct or to stop conducting an activity on the premises	Premises are being used— • for a prohibited purpose, or • for a purpose for which a planning approval is required but has not been obtained, or • in contravention of a planning approval. Building is being used— • inconsistently with its classification under this Act or the Local Government Act 1993, and • in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and • in a manner that is not regulated or controlled under any other Act by a public authority. Premises are being used for an activity (that would or would be likely to require planning approval) that— • constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  is not regulated or controlled under any other Act by a public authority.	• The owner of premises or building • The person using the premises or building

6. The Site is zoned ‘Environmental Living’ C4 under the Queanbeyan-Palerang Regional Local Environmental Plan 2022 (QPR LEP). The Applicant has been using the Site as a transport depot which is a prohibited use in the zone.

7. Council received complaints over a long period of time in regard to the use of the Site as a transport depot.

8. On 3 October 2023 Council officers inspected the Site, and evidence was obtained that the premises were being used to park and service trucks, trailers and machinery. This particular use meets the definition of a Transport Depot in the QPR LEP.

9. On 4 October 2023, Council issued a Notice of Proposed Order reference no. ON.2023.0149, requiring the Applicants to cease use of the Site as a transport depot.

10. On 24 November 2023, the Applicants made representations against the requirements set out in the Notice of Proposed Order, requesting that Council not issue the DCO.

11. On 28 November 2023, Council provided a detailed response to the Applicants’ representations.

12. On 28 November 2023, Council issued the DCO.

13. On 9 February 2024, further representations were made by the solicitors for the Applicants.

14. On 12 February 2024, Council issued a corrected DCO which is the DCO that is the subject of these proceedings.

15. On 8 March 2024, the Applicants filed their appeal in the Court.

16. The ‘Stop Use Order’ required the Applicants to:

1. Cease using the premises at 8 Proud Place Wamboin NSW as ‘transport depot’ within 28 days of this Order being issued.

2. Cease parking trucks, truck and trailer combinations at 8 Proud Place Wamboin NSW within 29 days of this Order being issues.

3. Cease using and prevent all vehicular access (the activity) travelling to or from 8 Proud Place Wamboin NSW 2620 and into or out of the QPRC owned ‘Development Control Zone’ marked in red on Annexure A to the DCO (and a shown above in Figure 1).

17. The Court arranged a conciliation conference under s 34(1) of LEC Act between the parties, which was held on 23 September 2024. I presided over the conciliation conference.

18. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal, and issuing a modified DCO in accordance with Annexure A.

19. 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. The parties’ decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to modify the DCO. As set out above the parties have identified the jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisites have been satisfied.

20. I am therefore satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3)(a) and (b) of the LEC Act.

21. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. Pursuant to s 8.18(4)(b) I shall uphold the appeal, and modify the DCO in accordance with Annexure A.

23. The Court orders:

1. The appeal is upheld.

2. Development Control Order dated 12 February 2024 issued to the Applicants in respect of premises on Lot 40 in Deposited Plan 244439 and known as 8 Proud Place, Wamboin NSW 2620 be modified in accordance with Annexure A.

M Peatman

Acting Commissioner of the Court 

Annexure A

Decision last updated: 21 October 2024