Islamic Centre Sheikh Albani Incorporated v Fairfield City Council

[2024] NSWLEC 1330

Land and Environment Court

New South Wales

Medium Neutral Citation:

Islamic Centre Sheikh Albani Incorporated v Fairfield City Council [2024] NSWLEC 1330

Hearing dates:

Conciliation conference on 14 June 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order No.1, dated 13 September 2022, by Fairfield Council in relation to Lot 6 in DP26401, known as 20 Justin Street, Smithfield, as shown in the modified Order in Annexure A.

Catchwords:

APPEAL – development control order – stop use order – use now authorised by deferred commencement consent – conciliation conference – agreement reached to modify the terms of the order – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Fairfield Local Environmental Plan 2013

Cases Cited:

Islamic Sheikh Albani Incorporated v Fairfield City Council (No 2) [2024] NSWLEC 1238

Category:

Principal judgment

Parties:

Islamic Centre Sheikh Albani Incorporated (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
M Norman (Solicitor) (Applicant)
S Schneider (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Houston Dearn O'Connor (Respondent)

File Number(s):

2023/00125864

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development control order issued by Fairfield City Council on 13 September 2022 (the order). 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 requires the applicant to cease use of premises at 20 Justin Street, Smithfield, for the purpose of a place of public worship. Item 1 in the table allows a development control order to be issued as a stop use order where premises are being used for a purpose for which a planning approval is required but has not been obtained. A place of public worship is a purpose that requires a planning approval, but at the time of the issue of the order, planning approval had not been obtained. The applicant, Islamic Centre Sheikh Albani Incorporated, appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which modify the order, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 14 June 2024. I presided over the conciliation conference.

3. 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. The agreement reflects that which is contained in the signed agreement provided on 12 June 2024. The agreement is for the order to be modified such that the stop use order operates only until such time as the deferred commencement condition on a development consent granted on 8 May 2024 by the Court in proceedings 2022/330789 (Islamic Sheikh Albani Incorporated v Fairfield City Council (No 2) [2024] NSWLEC 1238) is satisfied.

The power to make orders in accordance with the agreement

4. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to modify the order in the agreed terms 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).

5. The modified order remains an order to stop use of the premises for the purpose of a place of public worship. Item 1 of Pt 1 of Sch 5 to the EPA Act allows a development control order to be issued as a stop use order where premises are being used for a purpose for which a planning approval is required but has not been obtained, or where premises are being used in contravention of a planning approval. The site is zoned E4 General Industrial pursuant to the Fairfield Local Environmental Plan 2013. Use of the premises for a place of public worship is permissible in the E4 zone only with development consent. As the development consent granted by the Court does not commence until such time as the deferred commencement conditions are satisfied, there is therefore power to issue the order.

6. In addition, s 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an 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.

7. I am satisfied that the decision to make orders to modify the order in the terms agreed to by the parties 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)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order.

8. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, 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)).

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

10. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order No.1, dated 13 September 2022, by Fairfield Council in relation to Lot 6 in DP26401, known as 20 Justin Street, Smithfield, as shown in the modified Order in Annexure ‘A’.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 14 June 2024