Ostwald v Brewarrina Shire Council

[2022] NSWLEC 1051

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ostwald v Brewarrina Shire Council [2022] NSWLEC 1051

Hearing dates:

Conciliation conference held on 10 December 2021

Date of orders:

07 February 2022

Decision date:

07 February 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Control Order (Stop Work Order) No 788.2 2021 issued on 9 July 2021 and served on Howard Ostwald and Patricia Ostwald, pursuant to s 9.35 of the Environmental Planning and Assessment Act 1979, is revoked pursuant to s 8.18(4)(f).

(3) No costs are ordered with the intention that each party pay their own costs.

Catchwords:

DEVELOPMENT CONTROL ORDER – irrigation earthworks – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.35, Part 1 Item 2 of Schedule 5

Land and Environment Court Act 1979, s 34

Local Government Act 1993

Water Management Act 2000

Category:

Principal judgment

Parties:

Howard Clifton Ostwald (First Applicant)
Patricia Ann Ostwald (Second Applicant)
Brewarrina Shire Council (Respondent)

Representation:

Counsel:
C Ireland (First and second Applicants)
M Seymour (Respondent)
R Coffey (Respondent)

Solicitors:
Webb & Boland Lawyers (Applicants)
Crennan Legal (Respondent)

File Number(s):

2021/224813

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against a Development Control Order (Stop Use) made on 9 July 2021 by the Brewarrina Shire Council (the Council), which relates to the use of three irrigation storages and associated infrastructure on the following lots, also known as Branglebar, Monkey Bridge Road, Brewarrina (hereafter the site):

• Lot 2145 DP 764112 (Western Land Lease, WLL 4359),

• Lot 6641 DP 820431 (WLL 13541),

• Lots 5117-5118 DP 720094 (WLL 13542), and

• Lot 6640 DP 820431 (WLL 13903).

2. The Council issued the Stop Use Order No 788.2 2021 (the Order) to cease use of the three irrigation storages and associated infrastructure located on the site, for not being constructed in accordance with Development Application 12-2001 and to provide evidence that the storages were being used in accordance with requirements of the Water Management Act 2000 (WMA).

3. The Order was issued pursuant to s 9.35 and Part 1 Item 2 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (EPA Act).

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 10 December 2021 by MS Teams, and without a site view. By agreement of the parties, the conciliation was adjourned until 1 February 2022, by which time the parties reached an agreement in the appeal.

6. Based on the evidence of experts and revocation of the Order, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and the evidence is sufficient to enable Council to revoke the Order.

7. 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)(f) of the EPA Act, for Council to revoke the Order and the Court to dismiss the appeal.

8. By the revocation of the Order, the parties agree that the relevant requirements of the EPA Act, WMA Act and Local Government Act 1993 are satisfied, and that the Court should not be constrained to dismiss the appeal, as agreed.

9. The revocation of the Order has been considered in the context of the relevant legislative provisions. As explained to the Court, the parties agree that all jurisdictional requirements are resolved.

10. 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 revocation of the Order, pursuant to s 8.18(4)(f) of the EPA Act, and to dismiss the appeal.

11. 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.

12. The Court orders:

1. The appeal is dismissed.

2. Development Control Order (Stop Work Order) No 788.2 2021 issued on 9 July 2021 and served on Howard Ostwald and Patricia Ostwald, pursuant to s 9.35 of the Environmental Planning and Assessment Act 1979, is revoked pursuant to s 8.18(4)(f).

3. No costs are ordered with the intention that each party pay their own costs.

…………………………

Sarah Bish

Commissioner of the Court

**********

Amendments

27 October 2022 - Amended to reflect the appearance of an additional legal representative.

Decision last updated: 27 October 2022