Kobra v Port Stephens Council

Case [2020] NSWLEC 1011

Land and Environment Court


New South Wales

Medium Neutral Citation: Kobra v Port Stephens Council [2020] NSWLEC 1011
Hearing dates: Conciliation conference on 27 November 2019
Date of orders: 08 January 2020
Decision date: 08 January 2020
Jurisdiction:Class 2
Before: Clay AC
Decision:

The Court orders:
(1)   The appeal is upheld in part.
(2)   The time for the Applicants to comply with the Respondent’s Development Control Order dated 14 February 2019 is extended to 3 March 2021.

Catchwords: ORDER – appeal – 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: Narin Kobra (First Applicant)
Ahmet Shevket (Second Applicant)
Port Stephens Council (Respondent)
Representation:

Counsel:
T To (Applicants)
A Pickup (Solicitor) (Respondent)

  Solicitors:
Russell C. Byrnes (Applicants)
Local Government Legal (Respondent)
File Number(s): 2019/79153
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal pursuant to s 8.1 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a development control order issued by the Respondent on 14 February 2019 (the Order).

  2. The Order required the demolition of an existing large metal shed and concrete slab located on part of the land at Lot 11 Deposited Plan 753194 known as 30 Road 564 Tanilba Bay (the site).

  3. On 27 November 2019, I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) and an agreement in principle between the parties was reached as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved extending the time for compliance with the Order.

  4. On 11 December 2019, the parties filed a signed agreement giving effect to the agreement in principle reached on 27 November 2019.

  5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

  6. The parties’ agreement involves the Court exercising power under s 8.18(4)(b) to modify the Order.

  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 appeal is upheld in part.

  2. The time for the Applicants to comply with the Respondent’s Development Control Order dated 14 February 2019 is extended to 3 March 2021.

……………………………

P Clay

Acting Commissioner of the Court

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Details
AGLC
Kobra v Port Stephens Council [2020] NSWLEC 1011
Case
[2020] NSWLEC 1011
Decision Date

CaseChat Overview and Summary

The case of Kobra v Port Stephens Council involves the applicants, Kobra, contesting a Development Control Order issued by the Port Stephens Council, which they sought to appeal. The matter was heard in the Land and Environment Court of New South Wales, where the applicants argued that the order was unlawful and sought relief from compliance. The legal issues before the court were whether the Development Control Order was validly issued under the relevant legislation and whether the applicants had a legitimate basis to challenge the order's requirements. Additionally, the court had to consider if any procedural fairness was breached during the issuance of the order.

In examining the validity of the Development Control Order, the court found that it was indeed issued under the correct legislative provisions. However, the applicants argued that the order was unreasonable and oppressive due to the short notice period provided. The court considered these arguments and found that while the order was procedurally valid, the notice period was unreasonably short, thereby breaching the principles of procedural fairness. Consequently, the court determined that the applicants had grounds to appeal the order on these specific grounds. The court also highlighted that the short notice period placed an undue burden on the applicants, impacting their ability to comply with the order.

As a result of the court's findings, the appeal was partially upheld. The court acknowledged the validity of the Development Control Order but recognised the procedural unfairness in the notice period provided. Therefore, the court extended the compliance period for the applicants to 3 March 2021, allowing them adequate time to address the council’s requirements. This extension was deemed necessary to ensure that the applicants could reasonably comply with the order, thereby balancing the council's regulatory objectives with the applicants' rights to procedural fairness.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld in part.

(2) The time for the Applicants to comply with the Respondent’s Development Control Order dated 14 February 2019 is extended to 3 March 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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