Malosi Group Pty Ltd v Penrith City Council

[2022] NSWLEC 1505

Land and Environment Court

New South Wales

Medium Neutral Citation:

Malosi Group Pty Ltd v Penrith City Council [2022] NSWLEC 1505

Hearing dates:

Conciliation conference on 15 July 2022, 26 August 2022 and 8 September 2022

Date of orders:

19 September 2022

Decision date:

19 September 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.14 and s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the development control order No. 2 dated 1 April 2022 and given by the Respondent pursuant to Div 9.3 and Schedule 5 Part 1 of the Environmental Planning and Assessment Act 1979 to the Applicant, is substituted in terms of the substituted Order No. 1 attached as Annexure A. The date of the substituted Order No. 1 of Schedule 5 Part 1 attached as Annexure A and dated 19 September.

Catchwords:

DEVELOPMENT CONTROL ORDERS – Order no. 2 – cease any unauthorised work – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.3, 8.14, 8.18, 9.34, Sch 5 Pt 1

Land and Environment Court Act 1979, ss 17, 34

Penrith Local Environmental Plan 2010, zoning, cl 1.4, Dictionary

Protection of the Environment Operations Act 1997, s 91

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 2, cl 2.2

State Environmental Planning Policy (Hazards & Resilience) 2021, cll 4.14, 4.18

Category:

Principal judgment

Parties:

Malosi Group Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
W Sadek (Solicitor) (Applicant)
M Bullivant (Solicitor) (Respondent)

Solicitors:
Sadek Lawyers (Applicant)
Penrith City Council (Respondent)

File Number(s):

2022/123351

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against DC22/0145 a Development Control Order numbered 2 (DCO) issued by Penrith City Council (Council) pursuant to Div 9.3, and Sch 5, Pt 1 of the EPA Act. The DCO was issued to Malosi Group Pty Ltd (Applicant) on 1 April 2022.

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is found in 8.18(4) of the EPA Act and s 34(3) of the LEC Act.

4. These proceedings relate to Lot 6 in Deposited Plan 29178, being the whole of the land known as 6 Seventh Avenue Llandilo (the Premises).

5. The DCO required the Applicant to:

…Cease any further unauthorised works at the premises including those defined as:

• Earthworks

• Tree and/or vegetation clearing

• Use as a storage premises.

6. The Applicant was required to comply with the terms of the DCO immediately from 1 April 2022.

Legislation

Environmental Planning and Assessment Act 1979

Division 8.5 Appeals—development control orders

8.18   Appeals concerning orders

(1)  A person who is given a development control order may appeal to the Court against the order.

(2)  However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(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.

…

Division 9.3 Development control orders

9.34   Orders that may be given

(1)  The development control orders that may be given under this Act are as follows—

(a) general orders in accordance with the table to Part 1 of Schedule 5,

…

Schedule 5 Development Control Orders

Part 1 General Orders

Column 1 To do what?	Column 2 When?	Column 3 To whom?
1 1 To do what?	Stop Use Order To stop using premises or a building Not to conduct or to stop conducting an activity on the premises	Premises are being used— •  for a prohibited purpose, or •  for a purpose for which a planning approval is required but has not been obtained, or •  in contravention of a planning approval. Building is being used— •  inconsistently with its classification under this Act or the Local Government Act 1993, and •  in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  in a manner that is not regulated or controlled under any other Act by a public authority. Premises are being used for an activity (that would or would be likely to require planning approval) that— •  constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  is not regulated or controlled under any other Act by a public authority.	•  The owner of premises of building • The person using the premises or building
2 2 2	Stop Work Order To stop building work or subdivision work carried out in contravention of this Act	Building work or subdivision work is carried out— •  in contravention of this Act, or •  in a manner that would affect the support of adjoining premises	•  Owner of land •  Any person apparently engaged in the work

…

State Environmental Planning Policy (Hazards Resilience) 2021

4.18   Clean-up notice remediation—special provision

(1)  This Chapter does not apply to or in respect of anything done for the purpose of complying with a clean-up notice, except as provided by this section.

(2)  Any development or activity carried out for the purpose of complying with a clean-up notice—

(a)  may be carried out without development consent, and

(b)  to the extent that it involves carrying out any remediation work, must be carried out in accordance with section 4.14(1) (paragraph (c) excepted).

(3)  In this section, clean-up notice means—

(a) a notice given under section 91 of the Protection of the Environment Operations Act 1997 that is specified in Schedule 2, or

(b)  if a notice so specified has been varied under section 110 of that Act, the notice as varied for the time being.

(4)  If this section is inconsistent with another State environmental planning policy, a regional environmental plan or a local environmental plan (whether made before or after this section), this section prevails, subject to section 36(4) of the Act.

Conciliation Conference

7. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 15 July 2022, 26 August 2022 and 8 September 2022. I presided over the conciliation conference.

8. At or after 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 issuing an amended DCO.

9. 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. The parties’ decision involves the Court exercising the function under ss 8.14 and 8.18(4)(a) and (c) of the EPA Act and s 34(3)(a) and (b) of the LEC Act to issue a substituted DCO.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. The unauthorised clearing of vegetation, earthworks and use of the Premises as a storage premises are prohibited in the zone applicable to the Site.

1. The Applicants carried out unauthorised vegetation clearing, earthworks and use of the Premises as a storage premises. Those unauthorised works or uses are particularised in the DCO.

2. Section 4.3 of the EPA Act provides:

4.3   Development that is prohibited

If an environmental planning instrument provides that—

(a)  specified development is prohibited on land to which the provision applies, or

(b)  development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

3. For the purposes of cl 1.4 and the Dictionary of the Penrith Local Environmental Plan 2010 (PLEP 2010), clearing of vegetation has the same meaning as in the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), Chapter 2.

4. For the purposes of cl 2.2(1) of the Biodiversity SEPP, clearing vegetation includes:

(a) cut down fell, uproot, kill, poison, ringbark, burn or otherwise destroy the vegetation, or

(b) lop or otherwise remove a substantial part of the vegetation.

5. Clause 2.2 of the Biodiversity SEPP does not authorise the clearing of vegetation on the Premises.

6. Vegetation clearing is prohibited in the RU4 ‘Primary Production Small Lots’ zone pursuant to the PLEP 2010.

7. Earthworks is defined in cl 1.4 and the Dictionary of the PLEP 2010. It is a prohibited use in accordance with PLEP 2010.

8. Under cl 1.4 and the Dictionary of the PLEP 2010, storage premises means:

a building or place used for the storage of goods, materials, plant or machinery for commercial purposes and where the storage is not ancillary to any industry, business premises or retail premises on the same parcel of land, and includes self-storage units, but does not include a heavy industrial storage establishment or a warehouse of distribution centre.

9. Storage premises are a prohibited use in the RU4 zone – Primary Production Small Lots pursuant to the PLEP 2010.

10. A ‘depot’ is defined pursuant to cl 1.4 and the Dictionary of the PLEP 2010 as:

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.

11. The use of the premises for the purpose of a Depot is prohibited in the RU4 ‘Primary Production Small Lots’ zone pursuant to the LEP.

2. Validity of the order:

1. After investigations by the Council, the DCO was issued as an order numbered 2 in the table at Sch 5, Pt 1 of the EPA Act.

2. The terms of the DCO in the s 34 Agreement is that the Court is being invited to substitute an order numbered 1 in the table of Sch 5, Pt 1 of the EPA Act for the existing order numbered 2 of Sch 5, Pt 1 of the EPA Act. The parties agree that factual circumstances exist for the giving of an order numbered 1 in lieu of the order numbered 2 in the table of Sch 5, Pt 1 of the EPA Act.

11. The parties have given further background information for substituting the order numbered 2 with an order numbered 1 in the table of Sch 5, Pt 1 of the EPA Act as follows:

1. The unauthorised vegetation clearing, earthworks and use of the Premises as a storage premises have adverse impacts on the Premises and the locality, such as:

1. In relation to removal of large canopy trees:

1. The majority of these trees observed on the Premises included large (10+) native eucalyptus species that were likely to have provided habitat for fauna. Many of the trees were in an area mapped as containing threatened species or communities with the potential for serious and irreversible impact as per the NSW Government’s Biodiversity Values Map and Threshold Tool in the Biodiversity SEPP.

2. The unauthorised clearing has resulted in significantly less shade on the Premises and in the local area which may contribute to greater temperatures by the urban heat island effects adversely impacting Penrith City and the surrounding areas, and in turn the residents who populate these areas.

2. In relation to unauthorised earthworks:

1. The unauthorised earthworks have an adverse environmental impact of changing the overland flow of water onto and across the Premises. The Premises is mapped as a flood lot and the change in flood dynamics as a result of the earthworks is unknown. Adverse flooding impacts could include risk to life and property, safe and effective evacuation of the lands, and detrimental effects on the environment caused by increased erosion.

2. The unauthorised earthworks have an adverse impact of dust generation impacting the Premises and the quiet enjoyment and health of occupiers of neighbouring properties.

3. In relation to the unauthorised use as a storage premises on the Premises, or alternatively as depot:

1. The uses have an adverse impact on the amenity within the location of the Premises;

2. The uses are inconsistent with the rural character of the Premises, caused by increased heavy vehicle movements and noise generation from the plant and equipment used in conjunction with those uses.

2. It is not in the public interest that the order be revoked:

1. For the orderly development and use of the Premises, and surrounding environment.

2. The order numbered 2 in the table of Sch 5, Pt 1 of the EPA Act is required to ensure that there is compliance with the statutory planning framework, orderly development of the land, to reverse existing adverse environmental impacts, and to maintain the rural locality and character.

12. 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)(a) and (b) of the LEC Act and ss 8.14 and 8.18(4)(a) and (c) of the EPA Act for the following reasons:

1. Council issued the DCO against the Applicant as the company executing works on the Premises, and the Applicant appealed in accordance with s 8.18(1) and within the time limit set by s 8.18(3)(a) of the EPA Act.

2. The Premises is zoned RU4 pursuant to the PLEP 2010. Clearing vegetation, storage and operating a depot on the Premises are all prohibited uses under the RU4 zoning.

3. Council issued the DCO on 1 April 2022 after conducting investigations on the Premises regarding potentially unauthorised earthworks, importation of material, clearing of vegetation and use of the Premises as a storage premises. After conducting investigations Council issued the DCO in accordance with s 9.34(1)(a) of the EPA Act.

4. During the s 34 Conciliation Conference it became clear that the Applicant was not responsible for all activities on the Premises, and that the owner of the Premises is to be held responsible for certain activities on the Premises by the Environment Protection Authority of NSW (EPA). The EPA’s investigations resulted in the EPA issuing a Clean-Up Notice dated 22 August 2022 (Notice Number 1303312 and Reference Number REG-2904) to the owner of the Premises, Rosemary Ishak, pursuant to s 91 of the Protection of the Environment Operations Act 1997, which is Annexure A to this judgment.

5. Some of the remedial works identified by the Council in the DCO are now dealt with by the EPA in the Clean-Up Notice dated 22 August 2022, whereupon the parties negotiated a substituted order numbered 1 of the table to Sch 5, Pt 1 in the EPA Act. The substituted order does not require any of the works set out in the Clean-Up Notice dated 22 August 2022 to be carried out by the Applicant.

6. The substituted order numbered 1 in the table to Sch 5, Pt 1 in the EPA Act is a ‘stop use order’ as opposed to the DCO which was a ‘stop building work or subdivision work carried out in contravention of this Act’. The substituted order further excludes such works as set out in the Clean-Up Notice dated 22 August 2022 as follows:

This Order does not apply to the extent that the Applicant is authorised to carry out any development or activity pursuant to s [sic] 4.18 of the State Environmental Planning Policy (Hazards and Resilience) 2021 for the purposes of complying the with Clean Up Notice dated 22 August 2022 issued by the EPA to the owner of the premises.

“Such works for the purposes of compliance with the Clean Up Notice consist of:

1. Formation of hard-stands of which require the importation of road base onto the Site.

2. Construction of a temporary bridge at the cross section of the land allowing the transportation of contaminated materials off site.

7. I note that the temporary bridge is to traverse the drainage channel as shown near the blue arrow on the aerial photograph dated 18 February 2022 in Annexure A.

8. The State Environmental Planning Policy (Hazards and Resilience) 2021 provides in cl 4.18 (subject to cl 4.14) that any remediation work or activity carried out pursuant to a clean-up notice may be carried out without development consent.

9. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

13. The Court orders:

1. The appeal is upheld.

2. Pursuant to ss 8.14 and 8.18(4) of the Environmental Planning and Assessment Act 1979, the development control order No. 2 dated 1 April 2022 and given by the Respondent pursuant to Division 9.3 and Schedule 5 Part 1 of the Environmental Planning and Assessment Act 1979 to the Applicant, is substituted in terms of the substituted order No. 1 of Schedule 5 Part 1 attached as Annexure A and dated 19 September.

14. The Court notes that the parties have agreed that there will be no order as to costs.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (438232, pdf)

**********

Annexure A

Development Control Order numbered 1 pursuant to the Environmental Planning and Assessment Act 1979 Division 9.3, Sch 5, Pt 1 dated 19 September 2022.

Ex 1: Clean-Up Notice dated 22 August 2022 being Notice Number 3503312 and Reference Number REG-2904 issued to the owner of the Premises, Rosemary Ishak.

Decision last updated: 19 September 2022