Prime Form Group Pty Ltd v Liverpool City Council

[2025] NSWLEC 1061

Land and Environment Court

New South Wales

Medium Neutral Citation:

Prime Form Group Pty Ltd v Liverpool City Council [2025] NSWLEC 1061

Hearing dates:

Conciliation Conference held 24 January 2025

Date of orders:

6 February 2025

Decision date:

06 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) Pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Development Control Order NO-687/2023 dated 10 October 2023 relating to the use of the site located at 1505 Camden Valley Way, Leppington NSW 2179, legally described at Lot 100 DP 1176542, issued to the Applicant by the Respondent is substituted by the Development Control Order set out in Annexure A, being an order that the Respondent as the relevant enforcement authority could have given.

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – stop use – time to comply - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Ch 3

Category:

Principal judgment

Parties:

Prime Form Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
A Jucha Respondent)

Solicitors:
Bick and Steele (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/353355

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Control Order Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the issue of a Development Control Order NO-687/2023 dated 10 October 2023 to stop use of premises as a ‘storage premises’ and remove all materials and items associated with the use including but not limited to scaffolding and formwork materials (DCO) related to premises at 1505 Camden Valley Way Leppington legally described as Lot 100 in DP 1176542 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 24 January 2025. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and substituting the DCO for another DCO.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

5. The parties’ decision involves the Court exercising the function under s 8.18(4)(c) of the EPA Act to substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 8.18(4)(c) of the EPA Act to substitute a DCO with another order.

7. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The reasons I am so satisfied are as set out in the reasons for the Order in the substituted Order at Annexure which are as follows:

1. The Applicant is the occupier of the Site.

2. The Site is zones B5 – Business Development, SP2 – Infrastructure -Classified Road and SP2 – Infrastructure – Drainage under Ch 3 Sydney Region Growth Centres of the State Environmental Planning Policy (Precincts – Western Parkland City) 2021. Development for the purpose of “storage premises” is prohibited at the Site.

8. 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.

Orders:

9. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act1979, the Development Control Order NO-687/2023 dated 10 October 2023 relating to the use of the site located at 1505 Camden Valley Way, Leppington NSW 2179, legally described at Lot 100 DP 1176542, issued to the Applicant by the Respondent is substituted by the Development Control Order set out in Annexure A, being an order that the Respondent as the relevant enforcement authority could have given.

10. The Court notes that the parties have agreed to each party to pay their own costs.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 06 February 2025