Kingelty v Dubbo Regional Council

[2021] NSWLEC 1107

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kingelty v Dubbo Regional Council [2021] NSWLEC 1107

Hearing dates:

Conciliation conference on 23 February 2021

Date of orders:

01 March 2021

Decision date:

01 March 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Refer to orders below at [7]

Catchwords:

APPEAL – development control order – stop use order

Legislation Cited:

Environment Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Lloyd Kingelty (First Applicant)
Susanna Kingelty (Second Applicant)
Dubbo Regional Council (Respondent)

Representation:

Counsel:
Andrew Butcherine (Applicants)
David Baird (Respondent)

Solicitors:
Nelson Keane & Hemingway (Applicants)
Marsdens Law Group (Respondent)

File Number(s):

2020/340956

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal against a development control order issued by Dubbo Regional Council on 4 November 2020 concerning the use of land at 15R Old Gilgandra Road, Dubbo. The order requires the cease of use of the land for residential accommodation, and the removal of structures 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 to Part 1 of Schedule 5 to the EPA Act. 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 prohibited use. Residential accommodation is a prohibited use on the land. The applicants, Mr and Mrs Kingelty, appeal against the order pursuant to s 8.18 of the EPA Act.

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

3. 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 23 February 2021. I presided over the conciliation conference.

4. 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 parties provided an agreed jurisdictional statement in support of their agreement, which is Annexure A to the agreement and is attached to this judgment.

5. The agreement reached is for the order to be modified so that its wording reflects that the use of the land as residential accommodation was stopped by 2 February 2021, and so that it specifies the buildings required to be removed as the 9 transportable buildings, communal bathroom building and kitchen building. The modified development control order is Annexure B to the agreement and is attached below. The intention of the applicants is to lodge a development application and/or a building information certificate application concerning any buildings that require development consent but are not required to be removed by the modified order.

6. 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, and s 8.18(4)(f) allows the Court to make such other order with respect to the development control order as the Court thinks fit.

7. 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)). 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.

8. The Court orders that:

1. The appeal is upheld.

1. The terms of the Development Control Order issued to the Applicant by the Respondent on 4 November 2020 in relation to the premises at 15R Old Gilgandra Road, Dubbo NSW 2830, is modified as follows:

“you are hereby directed to: stop the use of the land as residential accommodation and remove the structures from the site within 30 days of the date of this order (5pm, 4 December 2020).

(a) Stop the use of the land as residential accommodation by 2 February 2021; and

(b) Remove from the land the nine (9) transportable buildings, communal bathroom building and kitchen building identified in blue, red and yellow outline in the attached aerial photograph by 9 June 2021.

2. Each party is to pay its own costs.

……………………….

J Gray

Commissioner of the Court

Annexure A (102484, pdf)

Annexure B (292566, pdf)

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Amendments

04 March 2021 - Correction to the cover sheet.