Llandilo Property Holdings Pty Ltd v Penrith City Council

[2024] NSWLEC 1694

Land and Environment Court

New South Wales

Medium Neutral Citation:

Llandilo Property Holdings Pty Ltd v Penrith City Council [2024] NSWLEC 1694

Hearing dates:

Conciliation Conference 1, 26 August, 9, 19 September 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

Proceedings 2024/154668

The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order No 1 (stop use order) dated 9 April 2024 is substituted pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 (NSW) in accordance with the Development Control Order at Annexure A.

Proceedings 2024/154669

The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order No 3 (demolish works order) dated 9 April 2024 is substituted pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 (NSW) in accordance with the Development Control Order at Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Sch 5 Pt 1

Land and Environment Court Act 1979, ss 17, 34

Penrith Local Environmental Plan 2010

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Category:

Principal judgment

Parties:

Llandilo Property Holdings Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
A Pickup (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Pickup Legal (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/154668
2024/154669

Publication restriction:

No

Judgment

COMMISSIONER:

1. This judgment deals with the following two appeals:

1. Proceedings 2024/154668 (Stop Use Order Proceedings) – an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order issued by the respondent on 9 April 2024 under s 9.34(1) and Item 1 of Part 1 of Schedule 5 of the EPA Act (Stop Use Order), requiring the applicant to cease using premises identified as Lot 54 in Deposited Plan 2147, known as 54 Fourth Avenue, Llandilo (Site) as a trucking depot and retail premises.

2. Proceedings 2024/154669 (Demolition Order Proceedings) – an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order issued by the respondent on 9 April 2024 under s 9.34(1) and Item 3 of Part 1 of Schedule 5 of the EPA Act (Demolition Order), requiring the applicant to demolish an unauthorised shed structure and awning structures on the Site and remove all shipping containers (bar one) and associated waste from the Site.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Site is partly zoned RU4 Primary Production Small Lots and partly zoned SP2 Infrastructure under the Penrith Local Environmental Plan 2010 (PLEP). The Site is owned by the applicant.

4. At the time the Stop Use Order was issued, the respondent was of the view that the Site was being used as a “trucking depot” and “retail premises which includes the premises being used for the sale and distribution of insulated (sic) materials” as those terms are defined in the PLEP (Uses).

5. It was the respondent’s contention that:

1. the Uses are innominate prohibited uses in the RU4 and SP2 zones under the PLEP;

2. there are no development consents issued for the Site and the Uses are not ancillary to a permitted use of the Site;

3. the Uses are not exempt development pursuant to the provisions of the PLEP or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP); and

4. the Uses have the potential to result in environmental harm to the Site and surrounding locality.

6. At the time the Demolition Order was issued, it is agreed that the following relevant structures were located on the Site (collectively, the Structures):

1. a shed with two roller doors located along the eastern boundary of the Site (Shed);

2. two large white awnings erected along the eastern boundary of the Site (Awnings); and

3. multiple shipping containers (Shipping Containers),

7. It was the respondent’s contention that the Structures:

1. were constructed/located on the Site without consent and were unlawful (with the exception of one of the Shipping Containers);

2. were not exempt development pursuant to the provisions of the PLEP or Codes SEPP;

3. were constructed in connection with unauthorised uses of the Site (see [4]);

4. had an adverse amenity impact on the locality being visually intrusive and out of keeping with the rural residential character of the locality; and

5. had been erected/placed on the Site without adequate consideration to protection from bushfire noting the Site is mapped as bushfire prone land.

8. On 14 February 2024, the respondent issued the applicant with a:

1. Notice of Intention to Serve Development Control Order 1 (Stop Use Order Notice); and

2. Notice of Intention to Serve Development Control Order 3 (Demolition Order Notice).

9. No representations were received in response to the Stop Use Order Notice or Demolition Order Notice.

10. The Stop Use Order and Demolition Order were issued by the respondent on 9 April 2024 pursuant to s 9.34(1) and Part 1 of Schedule 5 of the EPA Act.

11. On 26 April 2024, the applicant commenced the Stop Use Order and Demolition Order Proceedings, being within the time period specified in s 8.18(3) of the EPA Act.

12. On 1 August 2024, the parties participated in a s 34 conference in respect of both matters, which was adjourned on multiple occasions. I presided over the conciliation conference.

13. During the course of the conciliation process, the parties reached agreement as to the resolution of both proceedings.

14. The agreement reached is for:

1. the Stop Use Order to be substituted with a development control order (Substituted Stop Use Order) requiring the applicant to cease using the Site as a “transport depot” as defined in the PLEP, by 31 December 2024, but which allows for the following temporary operations:

1. no more than four trucks per day may enter and exit the premises from Monday to Friday, and truck movements can only occur between the hours of 8:00AM and 5:00PM; and

2. no more than two trucks per day may enter and exit the premises on Saturday, and truck movements can only occur between the hours of 8:00AM and 1:00PM; and

2. the Demolition Order to be substituted with a development control order (Substituted Demolition Order) requiring the applicant to demolish/remove the Structures unless a Building Information Certificate (BIC) is obtained within eight months of the date of the Substituted Demolition Order which regularises those structures.

15. The parties provided signed s 34 agreements in the Stop Use Order Proceedings and Demolition Order Proceedings on 9 October 2024 with accompanying jurisdictional statements.

Substituted Orders

16. To make orders in accordance with the parties’ agreement in the Stop Use Proceedings and Demolition Order Proceedings, I must be satisfied that the decision to make orders substituting the Stop Use Order and Demolition Order is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

17. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

8.18 Appeals concerning orders (cf previous s 121ZK)

…

(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.

18. It is clear that the Court has power to substitute a development control order pursuant to s 8.18(4)(c) of the EPA Act.

19. I am satisfied the Stop Use Order should be substituted in the manner proposed by the parties on the basis that:

1. The Substituted Stop Use Order is agreed by the parties to be issued pursuant to Item 1 of Pt 1 of Sch 5 of the EPA Act, being a “Stop Use Order”. The applicant is the owner of the premises the subject of the Substituted Stop Use Order such that the applicant is able to be issued with the Substituted Stop Use Order pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act. I note that the applicant was also able to be issued with the original Stop Use Order on the basis that it was the “owner” of the premises for the purposes of Order No 3.

2. The parties agree that the Site is being used by the applicant as a “transport depot” as that term is defined in the PLEP. The Substituted Stop Use Order requires the applicant to stop using the Site as a “transport depot”, being a “prohibited purpose” in the RU4 and SP2 zones under the PLEP for the purposes of Item 1 of Pt 1 of Sch 5 of the EPA Act. The requirement for the applicant to cease using the Site as a “transport depot” therefore falls within the scope of Item 1 of Pt 1 of Sch 5 of the EPA Act and is in accordance with s 9.34 of the EPA Act. As the parties agree that the applicant is not using the Site for the prohibited purposes of a “trucking depot” or “retail premises”, it is appropriate that these uses are not included in the Substituted Stop Use Order. I note that the Substituted Stop Use Order contains provisions that allow the applicant to continue its “transport depot” operations until 31 December 2024 in a limited manner. Having regard to the agreed position of the parties, I am satisfied that this is a temporary measure to afford the applicant sufficient time to discontinue this use of the Site which the parties agree will have acceptable impacts if operated in this limited manner. On this basis, it is therefore appropriate to impose this provision of the Substituted Stop Use Order in the circumstances, having regard to s 8.18(4)(e) of the EPA Act.

3. The parties agree that the temporary limited operation of the Site as a transport depot until 31 December 2024, and cessation of the transport depot use thereafter, resolve the respondent’s concerns in relation to the use of the Site.

20. I am satisfied that the Demolition Order should be substituted in the proposed by the parties on the basis that:

1. The Substituted Demolition Order is agreed by the parties to be issued pursuant to Item 3 of Pt 1 of Sch 5 of the EPA Act, being a “Demolish Works Order”. The applicant is the owner of the Structures the subject of the Substituted Order such that the applicant is able to be issued with the Substituted Order pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act. I note that the applicant was also able to be issued with the original Demolition Order on the basis that it was the “owner” of the Structures for the purposes of Order No 3.

2. The Substituted Demolition Order primarily requires the applicant to carry out the works the subject of the original Demolition Order, however, provides additional time for these works to be carried out unless a BIC is obtained for the Structures within eight months of the date of the Substituted Order. The Substituted Demolition Order therefore falls within the scope of Item 3 of Pt 1 of Sch 5 of the EPA and is in accordance with s 9.34 of the EPA Act.

3. The parties agree that either the demolition of the Structures, or issuing of a BIC in respect of the Structures, will resolve the respondent’s concerns in relation to the unauthorised Works.

Conclusion

21. 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 Stop Use Order Proceedings and Demolition Order Proceedings in accordance with the parties’ decision.

22. The Court notes that the applicant has agreed to:

1. remove the large concrete pipes from the front of the Site to improve the visual impacts of the Site on the locality; and

2. store any remaining materials on the Site at least three metres from existing trees on the Site.

Orders

Proceedings 2024/154668

23. The Court orders that:

1. The appeal is upheld.

2. The Development Control Order No 1 (stop use order) dated 9 April 2024 is substituted pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 (NSW) in accordance with the Development Control Order at Annexure A.

Proceedings 2024/154669

24. The Court orders that:

1. The appeal is upheld.

2. The Development Control Order No 3 (demolish works order) dated 9 April 2024 is substituted pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 (NSW) in accordance with the Development Control Order at Annexure B.

N Targett

Commissioner of the Court

154668.24 Annexure A

154669.24 Annexure B

**********

Decision last updated: 31 October 2024