Melonas v Liverpool City Council

[2022] NSWLEC 1045

Land and Environment Court

New South Wales

Medium Neutral Citation:

Melonas v Liverpool City Council [2022] NSWLEC 1045

Hearing dates:

Conciliation conference on 21 December 2021

Date of orders:

1 February 2022

Decision date:

01 February 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order given by the Council to the Applicants on 19 January 2021 is modified as set out in the amended development control order at Annexure A.

Catchwords:

APPEAL – development control order –structures erected without required development consent – demolish works order – storage use carried out without required development consent – stop use order – conciliation conference – agreement – modified order

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

State Environmental Planning Policy (Western Sydney Aerotropolis) 2020

Category:

Principal judgment

Parties:

Peter George Melonas (First Applicant)
Vicki Angelina Wolter (Second Applicant)
Willi Helmut Wolter (Third Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Reid (Applicants)
R O’Gorman-Hughes (Respondent)

Solicitors:
Peters Lawyers (Applicants)
Liverpool City Council (Respondent)

File Number(s):

2021/38139

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against a development control order (Order) given to the Applicants by Liverpool City Council (Council) on
   19 January 2021. The Order relates to part of the land described as Lot 1 DP 235953, known as 665 Fifteenth Avenue, Austral (Land). The Order requires the demolition and removal of two sheds and an extension to another shed erected on the Land. The Order also requires the use of the Land for the purposes of storage premises and a transport depot to stop.

2. The Order was given pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. Item 1 in the table allows a development control order to be issued as a “stop use order” where a building or premises are being used for a prohibited purpose, or for a purpose for which a planning approval is required but has not been obtained. Such an order can be given to the owner of the premises or building, or to the person using the premises or building. Item 3 in the table allows a development control order to be issued as a “demolish works order”, where a building requiring a planning approval is erected without approval and where a building is otherwise erected in contravention of the EPA Act. Such an order can be given to the owner of the land on which the building has been erected.

The planning controls

3. The sheds are buildings for the purposes of the EPA Act.

4. That part of the Land which is the subject of the Order is partly within Zone RU6 – Transition under the Liverpool Growth Centres Precinct Plan 2013, which is Appendix 8 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 and partly within the Environment and Recreation Zone under the State Environmental Planning Policy (Western Sydney Aerotropolis) 2020. The use of the Land for the purposes of “storage premises” or a “transport depot” is prohibited on land within those zones.

The appeal

5. The Applicants are the owners of the Land and have appealed against the Order pursuant to s 8.18 of the EPA Act.

6. The parties agree that the Land is being used for the purposes of “storage premises” and a “transport depot”, as those expressions are defined in the relevant environmental planning instruments and that the use of the Land for those purposes is prohibited. The parties also agree that the sheds the subject of the Order require a planning approval, but have been erected without any such approval.

7. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, 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.

8. At the request of the parties, the appeal was listed for a second conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference, which took place on 21 December 2021. An earlier conciliation conference was conducted on 26 July 2021 but was terminated when the parties were unable to reach agreement. Following the second 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 signed agreement was filed with the Court on 24 January 2022 and is supported by a Jurisdictional Statement sent to the Court on the same day.

The proposed amended order

9. The agreement reached is for the Order to be modified so that an additional period of time is allowed within which the Applicants must comply with the Order.

The Court’s jurisdiction

10. I am satisfied that the decision to modify the Order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). This is because 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 order.

11. Having reached the state of satisfaction that the decision the subject of the parties’ agreement is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ agreement.

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

The Court’s orders

13. The Court Orders that:

1. The Appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 the Development Control Order given by the Council to the Applicants on 19 January 2021 is modified as set out in the amended development control order at Annexure A.

…………………….

A Bradbury

Acting Commissioner of the Court

Annexure A) (240222, pdf)

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Decision last updated: 01 February 2022