Haines v Wollondilly Shire Council

[2021] NSWLEC 1770

Land and Environment Court

New South Wales

Medium Neutral Citation:

Haines v Wollondilly Shire Council [2021] NSWLEC 1770

Hearing dates:

Conciliation conference on 17 November 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the development control order issued by the Respondent to the Applicant dated 2 July 2021 is modified in accordance with the development control order at Annexure ‘A’.

Catchwords:

APPEAL – Development control order – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 6.23, 8.18, 9.34

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Mark John Haines (Applicant)
Wollondilly Shire Council (Respondent)

Representation:

Counsel:
P Holt (Solicitor) (Applicant)
C Zoppo (Solicitor) (Respondent)

Solicitors:
Holding Redlich (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/216274

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against a Development Control Order issued by Wollondilly Shire Council on 2 July 2021 concerning the use of land at No 140 Waterfall Creek Road, The Oaks. The order requires the removal of a shed from the site. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which allows a Development Control Order to be given in accordance with the table at Schedule 5, Part 1 to the EPA Act (the Table).

2. Order 3 in the Table allows a development control order to be issued to demolish or remove a building, and order 10 in the Table provides for the restoration of premises to the condition in which they were before unlawful building or other works occurred.

3. The Applicant appeals against the order pursuant to s 8.18 of the EPA Act.

4. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, as follows:

(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.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 17 November 2021. I presided over the conciliation conference.

6. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

7. The agreement reached is for the order to be modified so that the period for compliance is varied, subject to the Applicant lodging a Development Application and a Building Information Certificate application for use of the shed that requires development consent, but so that the shed is not required to be removed, on the basis of the modified period for compliance at pars 19-22 of Annexure A.

8. I am satisfied that the decision to make orders to modify the order is a decision that the Court can make in the proper exercise of its functions, pursuant to s 34(3) of the LEC Act because it is consistent with subss 8.18(4)(b) and 8.18(4)(f) of the EPA Act.

9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to dispose of the proceedings in accordance with the decision.

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

11. The Court notes that:

1. The Applicant agrees to:

1. file a Notice of Discontinuance in these proceedings by 19 November 2021 on the basis that there is no order as to costs and not file any other application or appeal relevant to the development control order the subject of these proceedings (Order);

2. the modification of the Order proposed by the Respondent in accordance with the development control order annexed hereto and marked Annexure “A”;

3. submit a detailed and comprehensive development application for the use of the Shed (DA) and an application for a Building information Certificate pursuant to s 6.23 of the Environmental Planning and Assessment Act 1979 for the Shed (BIC) with the Council through the NSW Planning Portal, by 13 December 2021;

4. promptly respond to any reasonable request from the Respondent for information relevant to the DA and the BIC.

2. The Respondent agrees to:

1. modify the Order in accordance with the development control order annexed hereto and marked Annexure “A” within 7 days of the Applicant discontinuing these proceedings;

2. modify the development control order served on Ms Tina Hamilton (on similar terms) within 7 days of the Applicant discontinuing these proceedings;

3. revoke the Order and the order issued on Ms Tina Hamilton within 7 days of the grant of development consent to the DA and the issuing of a Building Information Certificate for the Shed.

12. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the development control order issued by the Respondent to the Applicant dated 2 July 2021 is modified in accordance with the development control order at Annexure ‘A’.

…………………..

T Horton

Commissioner of the Court

Annexure A (819184, pdf)

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Decision last updated: 15 December 2021