Pascoe v Byron Shire Council

[2023] NSWLEC 1091

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pascoe v Byron Shire Council [2023] NSWLEC 1091

Hearing dates:

Conciliation conference 28 February 2023

Date of orders:

28 February 2023

Decision date:

28 February 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Each party is to pay its own costs.

(3) The Demolish Works Order contained in the Development Control Order issued by the Respondent to the First Applicant and Second Applicant under section 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 dated 12 April 2022 (“the Order”) in relation to the premises at Lot 5 DP 259954, 484 Upper Wilsons Creek Road, Upper Wilsons Creek 2482 is revoked.

(4) The Stop Use Order contained in the Order is modified as follows:

“1. Stop Use of the unapproved guest house as per the building located to the east of the principal dwelling on the land and depicted in this order as floor plan (“A”) for the purpose of a dwelling house or for any other purpose otherwise than in accordance with a lawfully granted development consent or approval (where development consent or an approval is required for that use)”.

Catchwords:

APPEAL – development control order – stop use order – demolish works order – conciliation conference – agreement reached – order modified

Legislation Cited:

Byron Local Environmental Plan 2014

Environmental Planning and Assessment Act 1979, Div 9.3, ss 8.18, 9.34, Pt 1 Sch 5

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

John Pascoe (First Applicant)
Gaynor Pascoe (Second Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
M Young (Solicitor) (Applicant)
D Baird (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/133442

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The applicants appeal against a development control order that was issued by Byron Shire Council on 12 April 2022, which requires them to stop use of and to demolish a building located at 484 Upper Wilsons Creek Road, Upper Wilsons Creek (the order). The order was issued 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. The applicant appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which modify the development control order, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The order is issued pursuant to Div 9.3 of the EPA Act and Pt 1 of Sch 5 to the Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Pt 1 of Sch 5. Item 1 of Pt 1 of Sch 5 allows a development control order to be issued as a Stop Use order where premises are being used for a purpose for which a planning approval is required but has not been obtained, and Item 3 of Pt 1 of Sch 5 allows a Demolish Works Order to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”. The order comprises both of these types of orders. The building the subject of the order (the building) is distinct and detached from the principal dwelling located on the site. It is not disputed by the applicant that the building was being used for residential accommodation, for which planning approval was required but had not been obtained.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held today, 28 February 2023. I presided over the conciliation conference.

4. At the 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 agreement reflects that contained in the signed agreement filed on 23 February 2023. The agreement is that the order is modified to remove the requirement to demolish the building, and to modify the terms of the stop use order such that it requires that the applicants stop use of the building for the purpose of a dwelling house “or for any other purpose otherwise than in accordance with a lawfully granted development consent or approval”.

The power to make orders in accordance with the agreement

5. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to modify the order in the agreed terms 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).

6. Item 1 of Pt 1 of Sch 5 of the EPA Act allows a stop use order to be issued to the owner of premises where premises are being used for a prohibited purpose, or a purpose for which a planning approval is required but has not been obtained. The applicants are the owners of the premises. Since the commencement of the proceedings, that part of the site that the building is located on has been rezoned and is now zoned C2 Environmental Conservation pursuant to the Byron Local Environmental Plan 2014. Development for the purpose of residential accommodation is prohibited in the C2 zone. Accordingly, the statutory basis is met for the issue of a stop use order that prevents the use of the building for the purpose of a dwelling.

7. Further, s 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are 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. I am satisfied that the power under s 8.18(4)(b) is sufficiently broad to enable the Court to make orders to modify the development control order in the manner agreed by the parties.

9. I am therefore satisfied that the decision to make orders to modify the order is a decision that the Court can make in the proper exercise of its functions, for the reason that there is a statutory basis under Item 1 of Sch 5 of the EPA Act to issue a development control order, and s 8.18(4) gives the Court the power, on the hearing of the appeal, to modify the development control order

The outcome of the appeal

10. Having reached the state of satisfaction that the decision is one that the Court could make in the 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. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

11. The Court orders that:

1. The appeal is upheld.

2. Each party is to pay its own costs.

3. The Demolish Works Order contained in the Development Control Order issued by the Respondent to the First Applicant and Second Applicant under section 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 dated 12 April 2022 (“the Order”) in relation to the premises at Lot 5 DP 259954, 484 Upper Wilsons Creek Road, Upper Wilsons Creek 2482 is revoked.

4. The Stop Use Order contained in the Order is modified as follows:
   “1. Stop Use of the unapproved guest house as per the building located to the east of the principal dwelling on the land and depicted in this order as floor plan (“A”) for the purpose of a dwelling house or for any other purpose otherwise than in accordance with a lawfully granted development consent or approval (where development consent or an approval is required for that use)”.

J Gray

Commissioner of the Court

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Decision last updated: 28 February 2023