Redstone Ridge Vineyards Pty Ltd v Cessnock City Council

[2024] NSWLEC 1635

Land and Environment Court

New South Wales

Medium Neutral Citation:

Redstone Ridge Vineyards Pty Ltd v Cessnock City Council [2024] NSWLEC 1635

Hearing dates:

Conciliation conference on 9 October 2024

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) The Development Control Order issued by the Respondent to the Applicant on 24 August 2023 under Division 9.3 and Schedule 5, Part 2, order 3 of the Environmental Planning and Assessment Act1979 is revoked, pursuant to section 8.18(4)(a) of the Environmental Planning and Assessment Act 1979.

(3) The Fire Safety Order at Annexure A is given in substitution of the Development Control Order, pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act1979.

Catchwords:

DEVELOPMENT CONTROL ORDER – appeal – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34; Div 9.3; Sch 5 Pt 2

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Redstone Ridge Vineyards Pty Ltd (Applicant)
Cessnock City Council (Respondent)

Representation:

Counsel:
L Sims (Applicant)
J Farrell (Respondent)

Solicitors:
Aubrey Brown Lawyers (Applicant)
Sparkes Helmore Lawyers (Respondent)

File Number(s):

2023/286671

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against a Development Control Order (DCO) given to the applicant, Redstone Ridge Vineyards Pty Ltd, by the respondent, Cessnock City Council (the Council).

2. The DCO is a Stop Use Order and was given by the Council, pursuant to s 9.34(1)(b) and Pt 2 of Sch 5 order 3 to the EPA Act. A Stop Use Order can be given when a Fire Safety Order (FSO) has been given and not complied with. The Council initially gave the FSO (order 1) to the applicant on 15 February 2022, which required compliance by 18 May 2023. That order had not been fully complied with when the DCO was issued. The Council sought to enforce the FSO in Class 4 proceedings (Proceedings No. 2023/244936). That matter was resolved by consent orders made on 10 September 2024, requiring the applicant to complete certain actions, including building works, by 31 October 2025.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 October 2024. I presided over the conciliation conference. 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. 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. The parties’ decision involves the Court exercising the functions under s 8.18(4) of the EPA Act.

4. The parties have reached an agreement that the DCO be revoked, pursuant to s 8.18(4)(a) of the EPA Act, and substituted for another order that the Council could have given, pursuant to s 8.18(4)(c) of the EPA Act. The substituted order is a FSO, under Sch 5 Pt 2 order 1, which can be given to the owner of premises when provision for fire safety or fire safety awareness is inadequate to prevent fire, suppress fire or prevent the spread of fire. The FSO sets out its purpose, being to ensure or promote adequate fire safety or fire safety awareness. The effect of the substituted order will be to limit and manage the use of the premises until the actions required under the Class 4 consent orders are completed.

Conclusion

5. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 8 October 2024 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

6. The orders of the Court are:

1. The appeal is upheld.

2. The Development Control Order issued by the Respondent to the Applicant on 24 August 2023 under Division 9.3 and Schedule 5, Part 2, order 3 of the Environmental Planning and Assessment Act1979 is revoked, pursuant to section 8.18(4)(a) of the Environmental Planning and Assessment Act1979.

3. The Fire Safety Order at Annexure A is given in substitution of the Development Control Order, pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act1979.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (31295216, pdf)

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Decision last updated: 15 October 2024