King v Maitland City Council

[2020] NSWLEC 1005

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	King v Maitland City Council [2020] NSWLEC 1005
Hearing dates:	Conciliation conference on 18 December 2019
Date of orders:	07 January 2020
Decision date:	07 January 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   The terms of the Respondent’s Development Control Order dated 13 August 2019 are varied to require the owner of the Property to do the following:- (a)   Stop the use of the property for the purpose of an animal boarding or training establishment within ninety (90) days of the date of this Order.
Catchwords:	APPEAL – development control 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:	Clare Louise King (Applicant) Maitland City Council (Respondent)
Representation:	Counsel: A Bilias (Solicitor) (Applicant) A Pickup (Solicitor) (Respondent)   Solicitors: Bilias & Associates (Applicants) Local Government Legal (Respondent)
File Number(s):	2019/283436
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Ms King against a development control order issued by Maitland City Council on 13 August 2019, which required her to stop the use of the property at 16 Richardson Street, East Maitland, for the purpose of an animal boarding or training establishment. An animal boarding or training establishment is a prohibited use in the zone that the property is located in. 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 Part 1 of Schedule 5 to the EPA Act. Ms King appeals 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 18 December 2019. 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 agreement is that the order is modified so that its wording is confined to stopping the use “for the purpose of an animal boarding or training establishment”, rather than specifying aspects of that use.

4. As the presiding Commissioner, 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 (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.

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. The terms of the Respondent’s Development Control Order dated 13 August 2019 are varied to require the owner of the Property to do the following:-

1. Stop the use of the property for the purpose of an animal boarding or training establishment within ninety (90) days of the date of this Order.

………………………

J Gray

Commissioner of the Court

**********

Amendments

26 March 2020 - Correction to [4] - deletion of the words "remove the encroachment" and replacing those words with "modify the order".