Mac GT Motors Pty Ltd v Canterbury-Bankstown Council

[2021] NSWLEC 1467

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mac GT Motors Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1467

Hearing dates:

Conciliation conference on 1 April 2021

Date of orders:

16 August 2021

Decision date:

16 August 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Control Orders No. 3 and 11 in the Table to Part 1, Schedule 5 of the Environmental Planning and Assessment Act 1979 issued by the Respondent on 4 November 2020 issued in respect of the use of Lot 136A DP 415490, 31 Fitzpatrick Street, Revesby NSW 2212 are modified and reissued in the form contained in Annexure A.

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, s 34

Category:

Principal judgment

Parties:

Mac GT Motors Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
M Mantei (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Planning Law Solutions (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2020/342363

Publication restriction:

No

Judgment

1. COMMISSIONER: Mac GT Motors Pty Ltd, has appealed, pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act), against two development control orders issued by Canterbury-Bankstown Council on 4 November 2020.

2. The orders were issued pursuant to s 9.34(1) of the (EPA Act) and relate to the applicant’s industrial premises located at 31 Fitzpatrick Street, Revesby (site). The terms of the orders are as follows:

“1. In respect of Order 3, demolish or remove the hydraulic car crusher and shipping container located at the eastern exterior area of the premises, behind the building.

2. In respect of Order 11, comply with the conditions of consent of Development Application No. DA-875/1999 endorsed on 13 July 1999 for “Use of the site for vehicle dismantling and full motor dealers licence” and amended conditions of consent of Development Application No. DA-875/1999-1 dated 2 September 1999.”

3. This section of the EPA Act allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. Item 3 in the table allows a development control order to be issued to the owner of the premises for demolition works. Item 11 in the table allows a development control order to be issued to the owner of premises as a compliance order requiring compliance with a planning approval.

4. The powers of the Court on an appeal against an order, are set out in 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.

5. 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 1 April 2021. I presided over the conciliation conference.

6. 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 agreement is that pursuant to cl 22 of Pt 10, Sch 5 to the EPA Act, the Council hereby amends, and the applicant agrees, that order Item 3 is deleted, and order Item 11 is modified to require the applicant to undertake all works necessary to effect DA 385/2021 dated 15 July 2021 to the premises by 10 May 2022. The modified order is Annexure A to the orders recorded in [7(2)] below.

7. I am satisfied 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 as agreed by the parties. In that circumstance, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. Accordingly, the Court orders that:

1. The appeal is upheld.

2. Development Control Orders No. 3 and 11 in the Table to Part 1, Schedule 5 of the Environmental Planning and Assessment Act 1979 issued by the Respondent on 4 November 2020 issued in respect of the use of Lot 136A DP 415490, 31 Fitzpatrick Street, Revesby NSW 2212 are modified and reissued in the form contained in Annexure A.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (114020, pdf)

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Decision last updated: 16 August 2021