Retast Pty Ltd v Bega Valley Shire Council

[2024] NSWLEC 1196

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Retast Pty Ltd v Bega Valley Shire Council [2024] NSWLEC 1196

Hearing dates:

Conciliation Conference 4 and 21 March 2024

Date of orders:

18 April 2024

Decision date:

18 April 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the period for compliance in Development Control Order No 10 issued by the Respondent to the Applicants on 26 July 2023 (as modified on 21 August 2023) as follows, and as shown on Annexure A:

“Period for Compliance with this Order: This Order must be complied with no later than 28 days after the date of the Court’s order in Proceedings 2023/267001”.

Catchwords:

APPEAL – development control order – modification of time for compliance - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Sch 5 Pt 1 cl 10, Pt 10 cl 22

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Retast Pty Ltd ACN 061 056 086 (First Applicant)
Mottisfont Pty Ltd ACN 078 233 208 (Second Applicant)
Bega Valley Shire Council (Respondent)

Representation:

Counsel:
A Hannam (Solicitor)(Applicant)
A Mehyhart (Solicitor)(Respondent)

Solicitors:
Johnson Winter Slattery (Applicant)
BAL Lawyers (Respondent)

File Number(s):

2023/267001

Publication restriction:

No

Judgment

1. COMMISSIONER: These are two Class 1 Appeals pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against development control order 10 issued by the Respondent on 26 July 2023 (as modified on 21 August 2023) (DCO) pursuant to s 9.34 of the EPA Act in respect of premises at 39 Quondolo Street, Pambula legally described as Lot 1 Sec 33 in DP 758825 (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 4 and 21 March 2024. I have 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 modifying the order.

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 of the EPA Act to modify the DCO.

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 of the EPA Act to modify a development control order. The parties explained how the jurisdictional prerequisites have been satisfied.

7. The terms of the DCO require the applicants to “restore the premises to the condition in which they were before the unlawful building works occurred” within 28 days. The DCO was a Restore Works Order within the meaning of cl 10, Part 1 of Schedule 5 of the EPA Act.

8. On 21 August 2023, and with the applicants’ consent, the respondent modified the DCO pursuant to cl 22, Part 10 of Schedule 5 of the EPA Act. The modification extended the period for compliance with the DCO to 14 September 2023.

9. Section 8.18(4)(b) of the EPA Act provides the Court, upon hearing an appeal, with the power to modify a development control order. The modification to the time for compliance with the modified DCO will be a modification to a development control order.

10. The Court needs to be satisfied that firstly there is a development control order that has been issued by the respondent and secondly that the (further) modified DCO is an order that the respondent could have given.

11. The Court can readily be satisfied that there is a development control order, namely the DCO issued by the respondent, by its delegate, on 26 July 2023 (as modified on 21 August 2023) which is the subject of this appeal. The respondent is a relevant enforcement authority under s 9.35 of the EPA Act and therefore had power to issue the development control order. The respondent has the power to give general orders pursuant to s 9.34 in accordance with the table to Part 1 of Schedule 5 of the EPA Act.

12. The terms, circumstances and persons to whom a Restore Works Order can be given are specified in Item 10 of the table to Schedule 5 of the EPA Act as follows:

Restore Works Order To restore premises to the condition in which they were before unlawful building or other works occurred An unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out. •  The owner of the premises •  Any person entitled to act on a planning approval or acting in contravention of a planning approval •  In relation to work unlawfully carried out that was the deposit of material in a public place, the person responsible for unlawfully depositing material in a public place

13. The internal renovations which are the subject of the DCO were of a kind that can only be carried out with consent. The parties agree that the internal renovations were carried out without consent and are therefore “unauthorised works” for the purpose of Schedule 5.

14. The applicants are the registered proprietors of the Premises and, therefore, the respondent had the power to issue a development control order to the applicants.  

15. The DCO requires the applicants to “restore the premises to the condition in which they were before the unlawful building works occurred”, and is therefore consistent with what a Restore Works Order may require to be done under Schedule 5.

16. The parties have agreed to the Court modifying the time for compliance with the modified DCO.

17. 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. I adopt the reasons given by the parties in accordance with this judgment.

18. 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.

Notations:

19. The Court notes:

1. During the 28 day period, the Applicants will lodge a development application (DA) and building information certificate application (BICA) with the respondent seeking to regularise the internal renovations the subject of Development Control Order No 10.

2. The Respondent has agreed to further extend the time for compliance of Development Control Order No 10 (as modified) to the date of the Council’s determination of the earlier of the DA or BICA by the Council provided that the DA and BICA are made in accordance with [19(1)] and are complete and accepted by the Respondent (acting reasonably) for lodgement.

Orders:

20. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the period for compliance in Development Control Order No 10 issued by the Respondent to the Applicants on 26 July 2023 (as modified on 21 August 2023) as follows, and as shown on Annexure A:

“Period for Compliance with this Order: This Order must be complied with no later than 28 days after the date of the Court’s order in Proceedings 2023/267001”.

E Espinosa

Commissioner of the Court

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Annexure A

Amendments

26 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), typographical errors at [3] are corrected.

Decision last updated: 26 April 2024