Hall v Liverpool City Council

[2020] NSWLEC 1574

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hall v Liverpool City Council [2020] NSWLEC 1574

Hearing dates:

Conciliation conference on 4 September 2020; 12 and 26 October 2020

Date of orders:

23 November 2020

Decision date:

23 November 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979, the Developmental Control order in Annexure A to this agreement is substituted for the Developmental Control Order given by the Respondent to the Applicant on 22 April 2020.

Catchwords:

APPEAL – development control order – stop use order – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Alan Hall (First Applicant)
Pauline Hall (Second Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
T Wong (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Byles Anjos Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2020/149908

Publication restriction:

No

Judgment

1. COMMISSIONER: Mr and Mrs Hill appeal against a development control order that was issued by Liverpool City Council on 22 April 2020, which required them to stop using premises at 71 Racemosa Close, Kemps Creek, as a transport depot. 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 to Pt 1 of Sch 5 to the EPA Act. The order is a stop use order, issued pursuant to Item 1 of Pt 1 of Sch 5. It was issued because the Council considers that the use of the premises as a transport depot is prohibited within the zone. The applicants appeal against the order pursuant to s 8.18 of the EPA Act.

2. 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 4 September 2020, 12 and 26 October 2020. I presided over the conciliation conference.

3. Following 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. The signed agreement was filed on 16 November 2020. The agreement is that the order is substituted with another stop use order, which allows the applicants to comply with the order by 26 February 2021, but allows a limited number of vehicles to be stored on the site until 26 April 2021.

4. As the presiding Commissioner, I am satisfied that the decision to make orders to substitute the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(c) of the EPA Act gives the Court the power, on the hearing of the appeal, to substitute the development control order with “any other order that the relevant enforcement authority who gave the order could have given”.

5. 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”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

6. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979, the Developmental Control order in Annexure A to this agreement is substituted for the Development Control Order given by the Respondent to the Applicant on 22 April 2020.

……………………….

J Gray

Commissioner of the Court

Annexure A (38246, pdf)

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