Itaoui v Wollongong City Council

[2020] NSWLEC 1384

Land and Environment Court

New South Wales

Medium Neutral Citation:

Itaoui v Wollongong City Council [2020] NSWLEC 1384

Hearing dates:

Conciliation conference on 14 August 2020

Date of orders:

21 August 2020

Decision date:

21 August 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The Prevention Notice (reference no-2019/282) issued by the Respondent on 17 July 2019 pursuant to section 96 of the Protection of the Environment Operations Act 1997 in respect of 750 Princes Highway, Darkes Forest is revoked.

(2)   No order as to costs.

Catchwords:

APPEAL – prevention notice – waste water – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979

Protection of the Environment Operations Act 1997

Category:

Principal judgment

Parties:

Zeina Itaoui (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Bartier Perry Pty Limited (Respondent)

File Number(s):

2019/244600

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 miscellaneous appeal pursuant to s 289 of the Protection of the Environment Operations Act 1997 (POEO Act) being an appeal against and seeking revocation of a prevention notice reference no-2019/283 (Prevention Notice) issued by the Respondent on 17 July 2019 pursuant to s 96 of the POEO Act to the owner of 750 Princes Highway, Darkes Forest NSW 2508 (the Property) to cease the use of all toilets, bathrooms, kitchens and laundries and any other activities which may generate and require the treatment and disposal of wastewater from the building located on the Property from 5 pm Friday 16 August 2019. The Court has the power to hear such appeals pursuant to s 17(a) of the Land and Environment Court Act 1979 (LEC Act).

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which has been held on Friday, 14 August 2020. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved revoking the Prevention Notice and no order as to costs.

4. 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 292 of the POEO Act to determine the appeal.

5. 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 lodgement of the appeal within the 21 day limitation period and the status of the stay of the Prevention Notice. The parties explained how the jurisdictional prerequisites have been satisfied as follows:

1. On 7 August 2019 an appeal was lodged against the issue of the Prevention Notice pursuant to s 289(1) POEO Act, within the 21 day time frame prescribed.

2. Section 289(1A) of the POEO Act provides that the operation of a Prevention notice has continuing effect unless it is stayed by the Court.

3. On 16 August 2019 a notice of motion seeking to stay the operation of the notice was heard by Moore J. His Honour ordered that the operation of the Prevention Notice be stayed until 24 October 2019.

4. On 24 October 2019 the stay was extended until such time as the related Class 1 appeals were determined.

5. Related Class 1 proceedings in relation to the operation and development of the Site resolved by way of section 34 agreement on 17 June 2020 approving 3 x development applications and directing the issue of 3 x building information certificates.

6. 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. The reason I form this state of satisfaction is that the appeal was lodged within the 21 day timeframe prescribed by s 289(1) of the POEO Act and the waste water concerns the subject of the Prevention Notice have been satisfactorily addressed by the parties and the Court in the related Class 1 proceedings and as a result it is proper and appropriate for the court to exercise its function to determine the appeal in accordance with the decision of the parties.

7. 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.

8. The Court orders:

1. The Prevention Notice (reference no-2019/282) issued by the Respondent on 17 July 2019 pursuant to section 96 of the Protection of the Environment Operations Act 1997 in respect of 750 Princes Highway, Darkes Forest is revoked.

2. No order as to costs.

……………………….

E Espinosa

Commissioner of the Court

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Decision last updated: 24 August 2020