Muscatello v Liverpool City Council

[2021] NSWLEC 1797

Land and Environment Court

New South Wales

Medium Neutral Citation:

Muscatello v Liverpool City Council [2021] NSWLEC 1797

Hearing dates:

Conciliation conference held on 15 December 2021

Decision date:

24 December 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979, the Development Control Order in Annexure A is substituted for the Development Control Order given by the Respondent to the Applicants on 12 October 2021.

Catchwords:

DEVELOPMENT CONTROL ORDER – permissibility of use for transport depot – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cl 2.3

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

Category:

Principal judgment

Parties:

Ferdinand Muscatello (First Applicant)
Bruno Muscatello (Second Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
R Carbone (Agent) (Applicants)
B Bourke (Solicitor) (Respondent)

Solicitors:
Cardem Property Group) (Applicants)
Liverpool City Council (Respondent)

File Number(s):

2021/320358

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against a Development Control Order (Stop Use) made on 12 October 2021 by the Liverpool City Council (the Council), which relates to the undertaking of a business for a prohibited purpose on Lot 17 DP 713582, also known as 45 Racemosa Close, Kemps Creek (the site).

2. The Council issued the Stop Use Order (the Order) to cease use of the site for the undertaking of a (Transport Deport related) business other than in accordance with the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) on 17 September 2021, and because it is a prohibited use on the site, pursuant to cl 2.3 of Liverpool Local Environmental Plan 2008 (LLEP).

3. The Order was issued pursuant to s 9.34(1) and Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act), as the premises is being used for a prohibited purpose. The terms of the orders are as follows:

”1. To stop using premises described above as a Transport Depot as defined in the Liverpool Local Environment Plan 2008 for the parking and/or servicing of trucks.”

4. This Class 1 appeal against the Order is made under s 8.18(1) of the EPA Act.

5. The Court agreed to the parties’ request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 15 December 2021 by MS Teams, and without a site view.

6. Based on the substituted Order, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The constraint on use of the site is agreed by the parties as being in accordance with the permissible use of the site, and pursuant to the zoning of the land. The substituted Order requires the applicants to ensure the existing tenant of the site reframes from using the site for the purpose of a Transport Depot business, after an agreed period of time. The parties agree that based on the substituted Order, the Court has power as sought by the parties, pursuant to s 8.18(4)(c) of the EPA Act. The substituted orders are as follows:

1. From 24 December 2021 to 31 March 2022 no truck movements to and from the premises are to occur between 8pm-6am.

2. During the period 24 December 2021 to 31 March 2022, only the following 3 trucks and trailers (XN25HI, CP23YX and CB42UT) are permitted to enter and leave the premises.

7. The parties agree that the contentions of Council have been considered and are resolved by the substituted Order. The parties agree that the terms of the substituted Order are capable of being complied with in the timeframe as identified. The applicants accept that after 31 March 2021, the site will no longer be used as a transport depot.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 8.18(4)(c) of the EPA Act, to substitute the Order, as described in Annexure ‘A’.

9. The parties identified the jurisdictional prerequisites of relevance in these proceedings, as being consistent with the LLEP and the SEPP.

10. The site is located within land zoned RU4 Primary Production, pursuant to cl 2.3 of the LLEP. The zoning of the site constrains a transport related business operating on the site, which is not a permissible use. The substituted Orders have been considered, and are consistent with, the definition of a ‘Transport Depot’, as described in the LLEP.

11. By the substitution of the Order, the parties agree that the relevant requirements of the EPA Act, SEPP and LLEP are satisfied, and that the Court should not be constrained to substitute the Order, as agreed.

12. The terms of the substituted Order have been considered in the context of the reasonable needs of the existing tenant, the applicants tenancy agreement and relevant legislative provisions. As explained to the Court, the parties agree that all jurisdictional requirements are resolved.

13. Based on the evidence before me, as provided by the parties in the conciliation, I am satisfied that there are no jurisdictional impediments to the substitution of the Order, pursuant to s 8.18(4)(b) of the EPA Act.

14. 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.

15. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979, the Development Control Order in Annexure A is substituted for the Development Control Order given by the Respondent to the Applicants on 12 October 2021.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (147398, pdf)

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Decision last updated: 24 December 2021