Kline v Liverpool City Council

[2020] NSWLEC 1478

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kline v Liverpool City Council [2020] NSWLEC 1478

Hearing dates:

Conciliation conference on 2 October 2020

Date of orders:

6 November 2020

Decision date:

06 November 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

See Orders at [7]

Catchwords:

APPEAL – Stop Use and Demolish Works Order – structures erected without development consent – conciliation conference – use of premises as a depot – substituted orders – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

John Kline (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
P Anjos (solicitor) (Applicant)
R O’Gorman - Hughes (Respondent)

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

File Number(s):

2020 /00173493

Publication restriction:

Nil

Judgment

1. COMMISSIONER: In this matter the Applicant, John Kline, appeals a Development Control Order served on them as landowner by Liverpool City Council. That order is a ‘Stop use and demolish works order’ pursuant to s 9.3 of the Environmental Planning and Assessment Act 1979 (EPA Act) and seeks:

“- To stop using premises or a building. Namely, to stop using the premises as a depot, with the removal of the shipping containers, stored goods, materials and machinery located at the rear of the secondary dwelling on 97 Herbert Street, Kemps Creek NSW 2178.

‘depot means a building or place used for the storage (but not sale or hire) of plant, machinery or other goods (that support the operations of an existing undertaking) when not required for use, but does not include a farm building’.

- To demolish and remove a building. Namely, the concrete highlighted in blue in the Appendix attached to this letter, located at the rear of the secondary dwelling on 97 Herbert Street, Kemps Creek NSW 2178.”

2. The Applicant appeals under s 8.18 of the EPA Act. The powers of the Court on appeal are detailed at s 8.18(4) of the EPA Act 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 (the LEC Act) between the parties, which was held on 2 October 2020. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is that the appeal is upheld, and the order is substituted with an agreed order Annexed to this judgment.

4. As the presiding Commissioner, I am satisfied that the decision is one 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). I have formed this state of satisfaction for the following reasons:

1. The order is made to the owner of the premises or building.

2. In relation to the Stop Use order: the parties agree that the premises are being used for a prohibited purpose (depot).

3. In relation to the Restore Works order: the parties agree that unauthorised works have been carried out (the construction of a concrete slab that exceed 20m²).

4. In light of the preceding the requirements of the proposed Development Control Order are met.

5. The order details the reasons of the issue of the order: Schedule 5 Part 4s 5 of the EPA Act.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

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

…………………………

D M Dickson

Commissioner of the Court

Annexure A (321823, pdf)

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Decision last updated: 06 November 2020