EVT Group Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1536

Land and Environment Court

New South Wales

Medium Neutral Citation:

EVT Group Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1536

Hearing dates:

Conciliation conference on 26 June 2024, 30 July 2024 and 13 August 2024.

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Development Control Order dated 6 October 2024 issued by Canterbury-Bankstown Council to the Applicant in relation to the land in Lot 100 Deposited Plan 1006154 known as 948-950 Canterbury Road, Roselands NSW 2196 is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in accordance with Annexure A hereto.

Catchwords:

DEVELOPMENT CONTROL ORDER – Order No 1 stop use - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, Pt 1, Sch 5, ss 4.12, 8.14, 8.18, 9.34, 9.35

Land and Environment Court Act 1979, ss 17, 34

Canterbury Local Environmental Plan 2012

State Environment Planning Policy (Exempt and Complying Development Codes) 2008, cl 5B.1

Category:

Principal judgment

Parties:

EVT Group Pty Ltd ACN 651 956 188 (Applicant)
Canterbury-Bankstown Council ABN 45 985 891 846 (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
A Jucha (Respondent)

Solicitors:
Lionheart (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/346862

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant filed an appeal on 1 November 2023 in relation to Development Control Order dated 6 October 2023 pursuant to s 8.14(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. On 15 February 2023 the Respondent issued a Notice of Proposed Order (the Notice) under s 9.34(1) of the EPA Act in relation to Order No. 1 of the Table to Pt 1 of Sch 5 of the EPA Act:

3. On 6 October 2023 the Respondent issued a Development Control Order (DCO) pursuant to ss 9.34(1)(a) and 9.35(1)(b) of the EPA Act to the Applicant in relation to Order 1 in Pt 1 of Sch 5 of the EPA Act.

4. The Notice and DCO were in relation to the premises Lot 100 Deposited Plan 1006154 known as 948-950 Canterbury Road, Roselands NSW 2196 (the Premises/Site).

5. The terms of the DCO are that the Applicant:

1. “Stop using/permitting the use of the Premises for the purpose of a container recycling facility. (The use is defined as a ‘waste or resource transfer station’ for the purposes of Canterbury Local Environment Plan 2012 (CLEP 2012).

2. “Remove all materials (bottles, cans and the like) associated with the unlawful use.

3. “Notify Council by email to jenna’[email protected] when the use has stopped.”

6. On 1 November 2023 the Applicant appealed the DCO in accordance with the provisions of ss 8.18(1) and within the time provisions in 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

(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.

Part 1 General orders

Schedule 5: Development Control Orders

Column 1	Column 2	Column 3
To do what?	When?	To whom:
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 author	•   * The owner of premises or building •   * The person using the premises or building

7. The Site is located on the southern side of Canterbury Road between Belema Avenue to the west and Dreadnought Street to the east. The Site has a frontage of 38.23m to Canterbury Road, depths of 23.625m/28.06m and a Site area of 1056m². The Site is generally levelled. The Site contains an existing service station, which includes four pumps and a parking area along the eastern side of the Site. Structures consist of an awning over the pump areas as well as the service station building on the western side of the Site. Existing signage is located along the Site frontage. The structures associated the uses that are the subject of this application include a small office structure adjoining a caged storage area in the southeastern portion of the Site.

8. The Site is within Zone B5 Business Development under the Land Use Table of CLEP 2012, which provides:

Zone B5   Business Development

1   Objectives of zone

•  To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres.

•  To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design.

•  To support urban renewal that encourages an increased use of public transport, walking and cycling.

•  To encourage employment opportunities on Canterbury Road and in accessible locations.

2   Permitted without consent

Home occupations

3   Permitted with consent

Centre-based child care facilities; Food and drink premises; Garden centres; Hardware and building supplies; Hotel or motel accommodation; Landscaping material supplies; Oyster aquaculture; Passenger transport facilities; Respite day care centres; Roads; Shop top housing; Specialised retail premises; Tank-based aquaculture; Vehicle sales or hire premises; Warehouse or distribution centres; Any other development not specified in item 2 or 4

4   Prohibited

Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Forestry; Freight transport facilities; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Places of public worship; Pond-based aquaculture; Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Residential accommodation; Resource recovery facilities; Restricted premises; Retail premises; Rural industries; Sewage treatment plants; Sex services premises; Storage premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Waste disposal facilities; Water recreation structures; Water recycling facilities; Water supply systems; Wharf or boating facilities

9. The Applicant is the occupier of the Premises.

10. The use of the Premises as a waste or resource transfer station is permitted with consent in the B5 Business Development zone, however, no consent has been obtained from the Council for this use, and it is therefore unlawful.

11. No complying development certificate has been issued in relation to the use of the Premises as a ‘drop off collection point’ as defined by cl 5B.1 of the State Environment Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).

12. As the container recycling facility is not a complying development under the Codes SEPP, the use is defined in CLEP 2012 as a ‘waste or resource transfer station’.

13. An aerial photograph of the Site is below, with the Site marked with an arrow:

Figure 1: Aerial image of the Site outlined in blue (Respondent’s Statement of Facts and Contention filed 9 May 2024 in Proceedings No. 24/145608 and source Nearmap).

14. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

15. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 24 June 2024, 30 July 2024 and 13 August 2024. I presided over the conciliation conference.

16. 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 the Court:

1. Upholding the Applicant’s appeal in proceedings no. 2024/145608 (DA appeal),

2. Granting consent to DA-62/2024 for the use of part of the existing Site for a drop-off collection point for the collect and storage of recycling items (bottles and cans) and associated office (DA),

3. Upholding the appeal in these proceedings; and

4. Amending DCO to reflect the consent for use granted in DA-62/2024.

17. 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:

1. For proceedings no. 2024/145608 s 4.16 of the EPA Act;

2. For these proceedings, s 8.18(4) of the EPA Act

18. The parties identified the jurisdictional prerequisites to exercising the functions as set out above for these proceedings, and explained how they were satisfied:

1. The Applicant lodged the DA pursuant to s 4.12(1) of the EPA Act with the Council, in relation to part of the use of the Site, for a drop-off collection point for the collection and storage of recycling items (bottles and cans) and associated office. The appeal in relation to the DA became the DA appeal. As a result of granting the DA in the DA appeal, pursuant to s 8.18(4)(b) pars [2] and [3] in the DCO can be amended by deleting pars “1, 2 and 3” and inserting:

“1. Carry out the works in Development Application consent no. DA-63.2024 by 02 March 2025.”

2. The DCO was served in accordance ss 9.34(1)(a) and 9.35(1)(b) of the EPA Act, and the Applicant appealed in accordance with subs 8.18(1) and (3)(b) of the EPA Act.

3. The parties have agreed that the amended DCO so that the works, the subject of the DA appeal, will be completed within six months.

19. I am 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) of the LEC Act. I shall amend the DCO in accordance with s 8.18(4)(b) of the EPA Act.

20. 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.

21. The Court orders:

1. The Appeal is upheld.

2. Development Control Order dated 6 October 2024 issued by Canterbury-Bankstown Council to the Applicant in relation to the land in Lot 100 Deposited Plan 1006154 known as 948-950 Canterbury Road, Roselands NSW 2196 is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in accordance with Annexure A hereto.

M Peatman

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 02 September 2024