Gallaher v Armidale Dumaresq Council

[2022] NSWLEC 1541

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gallaher v Armidale Dumaresq Council [2022] NSWLEC 1541

Hearing dates:

Conciliation conference on 16 September 2022

Date of orders:

04 October 2022

Decision date:

04 October 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

1) The appeal is upheld, in part.

2) The Development Control Order issued by the Respondent to the Applicant dated 10 March 2022 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order at Annexure A.

3) The Appeal is otherwise dismissed.

Catchwords:

APPEAL – 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 34, 39

Category:

Principal judgment

Parties:

Patrick Gallaher (Applicant)
Armidale Dumaresq Council (First Respondent)
Nicholas Moumazelos (Second Respondent)

Representation:

Counsel:
S Watterson (Solicitor) (Respondent)

Solicitors:
Litigant in person (Applicant)
Property Law & More (Respondent)

File Number(s):

2022/160168

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against a development control order issued 10 March 2022 (the DCO) at 52 Oban Street Guyra legally described as Lot 44 in DP 6060 (the Site).

2. The DCO required the Applicant to do the following:

1. To demolish and/or remove the structures at 52 Oban Street, Guyra NSW 2365 (known formally as Lot 44 in DP 6060) – (“Buildings”)

2. Have all asbestos contaminated waste removed by a licensed Class A asbestos removal contractor to a licensed waste facility.

3. Conduct full clearance of the land, removing any and all waste and rubble.

4. Provide Council documentary evidence of contaminated waste removal within 7 days of removal of any such waste.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 16 September 2022. I have presided over the conciliation conference.

4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal in part and modifying the DCO.

5. 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 of the EPA Act to modify a DCO.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 8.18 of the EPA Act to modify a DCO.

7. The parties explained how the jurisdictional prerequisites have been satisfied in a Jurisdictional Statement which succinctly explains how each jurisdictional prerequisite has been satisfied and I set the explanation out below.

8. The DCO was issued by the Respondent Council pursuant to Div 9.3 of the EPA Act and Pt 1 of Sch 5 to the EPA Act. Section 9.34(1)(a) of the EPA Act allows a development control order to be given as a general order in accordance with the table to Pt 1 of Sch 5. Item 3 of Pt 1 of Sch 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building "is or is likely to become a danger to the public” or “is so dilapidated that it is prejudicial to persons or property in the neighbourhood".

9. The background to the order and the reasons for giving the order are set out in the order.

10. The parties have now reached an agreement on the terms of a modified DCO with respect to the Buildings. The modified DCO requires that the Applicant demolish the Buildings. However, the modified DCO also accommodates an alternative approach such that the Demolish Works Order need not be complied with if certain steps are taken by the Applicant to satisfy the Respondent Council that the Buildings do not contain asbestos and to ensure that the Buildings are suitable for occupation.

11. In hearing the appeal, the Court re-exercises the functions of the Respondent Council in determining whether the order should be issued. Section 39 of the LEC Act provides as follows:

39 Powers of Court on appeals ...

(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...

12. In addition, s 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against a development control 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.

13. The parties agree that the orders proposed in the section 34 agreement are suitable for the reasons set out in the modified DCO, which in summary are:

1. The buildings in their present state are or are likely to become a danger to the public or are so dilapidated that they are prejudicial to the occupants, persons or property in the neighbourhood because of the potential for asbestos containing materials and because the Buildings have not been properly installed and are not currently fit for occupation.

2. Mr Gallaher has obtained development consent for the installation of the Buildings on the land, subject to conditions.

3. The modified development control order requires Mr Gallaher to demolish and remove the Buildings. However, as an alternative, the order need not be complied with if steps are taken to satisfy the Council that the Buildings do not contain asbestos and to ensure that the Buildings are suitable for occupation.

14. The modified DCO is an order that can be made pursuant to Item 3 of Sch 5 to the EPA Act.

15. 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 adopt the reasons given by the parties set out in this judgment.

16. 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.

17. The Court notes that the parties have agreed that each party will pay its own costs of these proceedings.

Orders:

18. The Court orders:

1. The appeal is upheld, in part.

2. The Development Control Order issued by the Respondent to the Applicant dated 10 March 2022 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order at Annexure A.

3. The Appeal is otherwise dismissed.

……………………….

E Espinosa

Commissioner of the Court

**********

Annexure A 

Decision last updated: 04 October 2022