Noakes Group Pty Ltd v North Sydney Council

[2021] NSWLEC 1045

Land and Environment Court

New South Wales

Medium Neutral Citation:

Noakes Group Pty Ltd v North Sydney Council [2021] NSWLEC 1045

Hearing dates:

Conciliation conference and mediation on 17 July; 10, 14 & 31 August; 10 & 25 September; 23 October; 3, 11, 13 & 16 November; 7, 18 & 22 December 2020

Date of orders:

25 January 2021

Decision date:

25 January 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The Court notes that the parties have agreed that there be no order as to costs with the intention that each party should bear its own costs.

(2) The appeal is upheld.

(3) Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act1979 (EP&A Act), the Court orders that Development Control Order dated 30 March 2020 being Order 11 in Part 1 of the Table to Schedule 5 of the EP&A Act issued by the Council to the Applicant pursuant to ss 9.34 and 9.35 of the EP&A Act in respect of the land known as 6 John Street, McMahons Point be and is hereby revoked.

Catchwords:

DEVELOPMENT CONTROL ORDER – cease using premises unlawfully – conciliation and mediation – agreement – order revoked

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Civil Procedure Act 2005

Category:

Principal judgment

Parties:

Noakes Group Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
Allsop Glover Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

20/122833

Publication restriction:

Nil

Judgment

1. This is an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against a Development Control Order (order) dated 30 March 2020 being Order 11 in Part 1 of the Table to Schedule 5 of the EP&A Act issued by the Council to the Applicant pursuant to ss 9.34 and 9.35 of the EP&A Act in respect of the land known as 6 John Street, McMahons Point (site).

2. The order required the Applicant to cease certain activities at the site and to undertake its business at the site lawfully.

3. On 17 July 2020 I commenced a conciliation pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act). A conciliation is necessarily limited to the issues in the proceedings, however in this case the issues between the parties relating to the conduct of the business of the Applicant were broader than the issues in the proceedings relating to the order. Accordingly, on the application of the parties, on 7 August 2020 the Registrar ordered mediation pursuant to s 26 of the Civil Procedure Act2005, which was also delegated to me.

4. As a consequence, I presided over conciliation/mediation conferences on a number of occasions over several months, dealing with a range of issues, the culmination of which was the parties entered into an agreement pursuant to s 34 of the Court Act on 23 December 2020. Simultaneously the parties entered into a deed which the Court will note, but which does not require any orders to be made by the Court.

5. Although the process has taken in the order of 6 months, the parties at all times approached the issues with a view to finding a resolution which enabled the Applicant to conduct its business, but to do so in a responsible and environmentally acceptable way to the satisfaction of the Council, taking into account, in particular, the potential impacts on residents in the vicinity of the site. The object was always to ensure the appropriate balance is achieved both in the short term and with a mechanism to ensure the balance is maintained in the future.

6. Insofar as the proceedings are concerned, the agreement between the parties is that the appeal should be allowed, and the order revoked.

7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

8. The parties’ agreement involves the Court exercising the function under s 8.18(4)(a) of the EP&A Act to revoke the order. I am satisfied that I have power pursuant to s 8.18(4)(a) of the EP&A Act to make that order.

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) of the Court Act to dispose of the proceedings in accordance with the parties’ decision.

10. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

11. The Court orders:

1. The Court notes that the parties have agreed that there be no order as to costs with the intention that each party should bear its own costs.

2. The appeal is upheld.

3. Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act1979 (EP&A Act), the Court orders that Development Control Order dated 30 March 2020 being Order 11 in Part 1 of the Table to Schedule 5 of the EP&A Act issued by the Council to the Applicant pursuant to ss 9.34 and 9.35 of the EP&A Act in respect of the land known as 6 John Street, McMahons Point be and is hereby revoked.

…………………………

P Clay

Acting Commissioner of the Court

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Decision last updated: 25 January 2021