Grind Espresso Industrial Pty Ltd v Sutherland Shire Council

[2023] NSWLEC 1155

Land and Environment Court

New South Wales

Medium Neutral Citation:

Grind Espresso Industrial Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1155

Hearing dates:

Conciliation conference on 30 March 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Class 1

Before:

Deputy Registrar Orr

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) The Order given by Sutherland Shire Council on 28 September 2022 is modified pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 as follows:

(a)   Under the heading “To Do What”, the Order is amended as follows:

(i)   Item 1 remains;

(ii)   Item 2 is amended to read “for the awning to remain, evidence is to be provided from a suitably qualified person that the retractable awning above the counter service area of Grind café has been installed per manufacturer’s specifications and structural requirements and that it is structurally secure”;

(iii)   Item 3 is amended to read “the two screens in front of the service area of the café are to be placed on hinges and evidence is to be provided from a suitably qualified person that they are structurally secure”;

(iv)   Item 4 remains;

(v)   Item 5 is amended to read “for the toilet to remain, evidence from a suitably qualified person that the toilet in the storage area of Grind café has been installed in accordance with the relevant requirements of the National Construction Code”.

(b)   Under the heading “Period for Compliance”, the Order is amended as follows:

(i)   Item 2, 3 and 5 - within 30 days from the date of the Court Orders.

(ii)   Item 4 - within 21 days from the date of the Court Orders.

Catchwords:

DEVELOPMENT CONTROL ORDER – unauthorised structures and additions – compliance order – conciliation conference – agreement between the parties – modified order

Legislation Cited:

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

Land and Environment Court Act 1979 s 34

Category:

Principal judgment

Parties:

Grind Espresso Industrial Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
Mr B Dyer (solicitor) (Applicant)
Ms J Amy (solicitor) (Respondent)

Solicitors:
Maddocks (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2022/315203

Publication restriction:

Nil

JUDGMENT

1. The applicant, Grind Espresso Industrial Pty Ltd (Grind Espresso), has lodged an appeal in Class 1 of the Court’s jurisdiction pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the issuing of a Development Control Order (DCO) by the respondent, Sutherland Shire Council (the Council), pursuant to s 9.34 and Item 11 of Part 1 of Schedule 5 of the EPA Act.

2. Such an order can be given to the owner of the premises or building, or to the person using the premises or building. The DCO was issued by the Council to Grind Espresso as the tenants of the premises at Lot 24 DP 6359 known as 23 Parraweena Road, Caringbah.

3. The DCO required the removal of five items on the property that do not have Council approval and are not in compliance with the Complying Development Certificate CDC 20/0614 which authorises the use of the premises as a takeaway food and drink premises “espresso bar”. The terms of the DCO required the five items be removed and the timing by which the DCO be complied with.

4. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 30 March 2023. I presided over the conciliation conference, pursuant to s 34(14) of the LEC Act.

5. The matter commenced onsite where the remaining items were observed. After the site inspection, confidential without prejudice discussions between the parties and their experts occurred at Council’s chambers. The parties reached agreement as to the terms of a decision that would be acceptable to the parties. A signed agreement was filed by the parties on 30 March 2023.

6. The background to the DCO and the reasons for giving the order are set out in the original order. The original DCO required the removal of five unauthorised items:

1. Remove timber tables and similar objects located in the carpark/driveway area of 23 Parraweena Road, Caringbah.

2. Remove the retractable awning above the counter service area of the Grind café.

3. Remove the two (2) screens from the service area at the front of the Grind café that encroach into the carpark/driveway area of 23 Parraweena Road, Caringbah.

4. Remove the shipping container from the carpark/driveway area of 23 Parraweena Road, Caringbah.

5. Remove the toilet from the storage area of the Grind café with the area being reinstated for storage.

7. Grind Espresso has complied with item 1 of the DCO and removed the timber tables and similar objects located in the carpark/driveway area. The s 34 agreement involves modifying the DCO to amend the compliance orders in relation to items 2, 3 and 5, and amend the timing for compliance with the remaining items 2, 3, 4 and 5, as amended.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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) of the EPA Act to modify the DCO.

9. Section 8.18(4) of the EPA Act provides:

“(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.”

10. The Court has jurisdiction to modify a DCO the subject of an appeal pursuant to s 8.18(4)(b) of the EPA Act, which gives the Court sufficiently broad powers to modify the DCO in the manner agreed by the parties. Further, the modified DCO is an order that can be given pursuant to Item 11 of Pt 1 Sch 5 of the EPA Act.

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

12. The Court notes the parties have agreed that each party will pay its own costs.

13. The Court orders:

1. The appeal is upheld.

2. The Order given by Sutherland Shire Council on 28 September 2022 is modified pursuant to section 8.18(4)(b) of the Environmental Planning andAssessment Act 1979 as follows:

1. Under the heading “To Do What”, the Order is amended as follows:

1. Item 1 remains;

2. Item 2 is amended to read “for the awning to remain, evidence is to be provided from a suitably qualified person that the retractable awning above the counter service area of Grind café has been installed per manufacturer’s specifications and structural requirements and that it is structurally secure”;

3. Item 3 is amended to read “the two screens in front of the service area of the café are to be placed on hinges and evidence is to be provided from a suitably qualified person that they are structurally secure”;

4. Item 4 remains;

5. Item 5 is amended to read “for the toilet to remain, evidence from a suitably qualified person that the toilet in the storage area of Grind café has been installed in accordance with the relevant requirements of the National Construction Code”.

2. Under the heading “Period for Compliance”, the Order is amended as follows:

1. Item 2, 3 and 5 - within 30 days from the date of the Court Orders.

2. Item 4 - within 21 days from the date of the Court Orders.

E Orr

Deputy Registrar of the Court

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Decision last updated: 31 March 2023