Lawson DJM Pty Ltd v Liverpool City Council

[2022] NSWLEC 1035

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lawson DJM Pty Ltd v Liverpool City Council [2022] NSWLEC 1035

Hearing dates:

Conciliation conference on 20 January 2022

Date of orders:

25 January 2022

Decision date:

25 January 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) the appeal is upheld;

(2) pursuant to s8.18(4)(b) of the EP&A Act, the Court amends the Order the subject of this appeal in accordance with orders (3), (4) and (5) below.

(3) by 8 March 2022, the Applicant is to wholly cease use of the Site at 55 Lawson Road, Badgerys Creek (Site), for any purpose for which the Applicant does not have development consent;

(4) until such time as the owner of the Site or the Applicant has obtained development consent for any prospective use of the Site under a new development application (Prospective Application), the Applicant will not carry out any development other than exempt development or development for which the Applicant has been granted consent;

(5) the existing structures on the Site are permitted to remain until such time as the Applicant obtains development consent under the Prospective Application.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18, Div 9.3, Sch 5

Land and Environment Court Act 1979, s34

Category:

Principal judgment

Parties:

Lawson DJM Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
D Tyrell (Solicitor)(Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2021/213277

Publication restriction:

No

Judgment

1. COMMISSIONER: Lawson DJM Pty Ltd (the Applicant) has appealed the decision of Liverpool City Council (the Respondent) to issue Development Control Order NO-508/2021 (the Order) dated 30 June 2021, pursuant to Division 9.3 and the provisions of Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

2. The Order related to a use undertaken without development consent at 55 Lawson Road, Badgerys Creek (the Site), and required the Applicant to stop using the premises for the purpose of a warehouse and distribution centre, remove certain structures on the Site and restore the Site through the removal of certain materials from the land, being orders consistent with items 1, 3 and 10 of Part 1 of Schedule 5 of the EP&A Act.

3. The appeal comes to the Court pursuant to s 8.18 of the EP&A Act and falls within Class 1 of the Court’s jurisdiction.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 20 January 2020 by Microsoft Teams, and I have presided over the conciliation conference.

5. 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 the Court upholding the appeal and granting consent to the Applicant’s modification application, subject to conditions.

6. 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.

7. The Parties’ decision involves the Court exercising the function under s 8.18(4) of the EP&A Act to modify the Development Control Order, which is a general order made in accordance with the table in Part 1 of Schedule 5 of the EP&A Act.

8. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. 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.

10. 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.

11. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

12. The Court orders:

1. the appeal is upheld;

2. pursuant to s8.18(4)(b) of the EP&A Act, the Court amends the Order the subject of this appeal in accordance with orders (3), (4) and (5) below.

3. by 8 March 2022, the Applicant is to wholly cease use of the Site at 55 Lawson Road, Badgerys Creek (Site), for any purpose for which the Applicant does not have development consent;

4. until such time as the owner of the Site or the Applicant has obtained development consent for any prospective use of the Site under a new development application (Prospective Application), the Applicant will not carry out any development other than exempt development or development for which the Applicant has been granted consent;

5. the existing structures on the Site are permitted to remain until such time as the Applicant obtains development consent under the Prospective Application.

M Chilcott

Commissioner of the Court

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Decision last updated: 25 January 2022