Robibaro v Mid-Coast Council

[2020] NSWLEC 1209

Land and Environment Court

New South Wales

Medium Neutral Citation:	Robibaro v Mid-Coast Council [2020] NSWLEC 1209
Hearing dates:	Conciliation conference on 7 November 2019
Date of orders:	12 May 2020
Decision date:	12 May 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court Orders that: (1) The appeal is upheld in part. (2) The time for the Applicant to comply with the Respondent’s Development Control Order dated 26 February 2019 is extended until 31 May 2021.
Catchwords:	APPEAL – development control order – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Guido Robibaro (Applicant) Mid-Coast Council (Respondent)
Representation:	Counsel: G Robibaro (Litigant in Person) (Applicant) A Pickup (Solicitor) (Respondent)   Solicitors: Local Government Legal (Respondent)
File Number(s):	2019/78105
Publication restriction:	No

Judgment

1. COMMISSIONER: Mr Robibaro appeals against a development control order issued by Mid-coast Council, requiring him to remove two shipping containers stored on the property at 10 Suncrest Close, Bulahdelah. 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 Part 1 of Schedule 5 to the EPA Act. The order is a demolish works order, issued pursuant to Item 3 of Part 1 of Schedule 5 on the basis that the shipping containers require a planning approval, and a planning approval has not been obtained. Mr Robibaro appeals against the order pursuant to s 8.18 of the EPA Act.

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 was held on 7 November 2019. I presided over the conciliation conference.

3. The conciliation conference was adjourned to allow Mr Robibaro to lodge a development application for the erection of a dwelling and farm shed on the property. An agreement under s 34(3) of the LEC Act was subsequently reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is that the order is modified so that Mr Robibaro has an extended period of time to comply with its terms.

4. As the presiding Commissioner, I am 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 (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order, and s 8.18(4)(f) allows the Court to make such other order with respect to the development control order as the Court thinks fit.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the 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.

6. The Court notes that the Applicant has lodged a development application with Council seeking consent for a ‘Dwelling and Farm Shed’.

7. The Court orders that:

1. The appeal is upheld in part.

2. The time for the Applicant to comply with the Respondent’s Development Control Order dated 26 February 2019 is extended until 31 May 2021.

…………………

J Gray

Commissioner of the Court

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