S.M and G. I Pty Ltd v The Hills Shire Council

[2024] NSWLEC 1746

Land and Environment Court

New South Wales

Medium Neutral Citation:

S.M and G. I Pty Ltd v The Hills Shire Council [2024] NSWLEC 1746

Hearing dates:

Conciliation conference on 4 November 2024.

Date of orders:

21 November 2024

Decision date:

21 November 2024

Jurisdiction:

Class 1

Before:

Coetzee AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979 (EPA Act), the Development Control Order dated 2 August 2024 issued by the Respondent is revoked.

(3) Pursuant to s 8.18 (4)(c) of the EPA Act, the Development Control Order as Annexure A be the substituted Order.

Catchwords:

APPEAL – development control order – stop work order – conciliation conference – agreement between parties

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

The Hills Shire Local Environmental Plan 2019

Category:

Principal judgment

Parties:

S.M and G. I Pty Ltd (Applicant)
The Hills Shire Council (Respondent)

Representation:

Grant Christmas (Solicitor) (Applicant)
David Baird (Solicitor) (Respondent)

Solicitors:
Apex Planning and Environment Law (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/00320533

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This class 1 appeal is for a development control order issued by the Hills Shire Council on the 2 August 2024 (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 of the EPA Act. The order is a stop work order, issued pursuant to Item 2 of Pt 1 of Sch 5.

2. Item 2 in the table allows a development control order to be issued as a stop works order, where building work or subdivision work is carried out in contravention of the EPA Act. The order required the applicant to cease all building works in relation to Complying Development Certificate (CDC) VBS23-9039 issued by Ventura Building Surveyors located on the subject site 143 Glenhaven Road, Glenhaven NSW (Lot 200 DP 1177028). The applicant S.M and G.I Pty Ltd, appealed against the order pursuant to s 8.18 of the EPA Act.

3. The final orders on the appeal, which revoke and substitute the order are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 4 November 2034.

5. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement reflects that which is contained in the signed agreement provided on 8 November 2024. The agreement is for the Development Control Order dated 2 August 2024 to be revoked and substituted with a Restore Works Order pursuant to Item 10 of Pt 1 of Sch 5. A copy of the Development Control Order is included in Annexure A.

The power to make orders in accordance with the agreement

6. To make orders in accordance with the agreement, I must be satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions pursuant to s 34(3) of the LEC Act.

7. The Site is within Zone RU6 Transition pursuant to The Hills Local Environmental Plan 2019. Development Consent (Consent 92/2024/HC) was issued on the 12 December 2023 for development described as:

‘Alterations, additions and the change of use of an existing dwelling/restaurant to a restaurant, construction of a building for use as an artisan food and drink premises and associated works’

8. A CDC was issued on the 26 April 2024 by Ventura Building Surveyors authorising development described as:

‘Two storey dwelling with attached veranda and terraces and detached shed’

9. Certain works were undertaken on the site that were not in accordance with the CDC and for this reason the respondent issued the development control order pursuant to Item 2 of Pt 1 of Sch 5 of the EPA Act.

10. s 8.18(4) of the EPA Act gives the Court the following powers on appeal against an order:

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.

11. Pursuant to s 8.18(4)(a) of the EPA Act, the Court can revoke the Stop Work Order pursuant to Item 2, Pt 1 of Sch 5 of the EPA Act issued by the respondent on the 2 August 2024.

12. Pursuant to s 8.18(4)(c) of the EPA Act, the Court may substitute a development control order given. The parties agree that a Restore Works Order – pursuant to Item 10 of Pt 1 of Sch 5 of the EPA Act should be given in substitution of the Stop Work Order. The terms of the development control order are for the purposes of restoring the site to the condition in which it was before building work contrary to the CDC occurred in the circumstances where unauthorised work was undertaken.

13. I am satisfied that the decision to revoke the order and substitute the order in the terms agreed by the parties is a decision that the Court can make in the proper exercise of its functions under s 34(3) of the LEC Act for the reasons that pursuant to s 8.18(4)(a) and s 8.18(4)(c) of the EPA Act, respectively, gives the Court power, on the hearing of the appeal, to revoke a development control order and substitute a development control order.

14. 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)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. The LEC Act s 34(3)(b) also requires me to set out in writing the terms of the decision.

15. 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.

Orders

16. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979 (EPA Act), the Development Control Order dated 2 August 2024 issued by the Respondent is revoked.

3. Pursuant to s 8.18 (4)(c) of the EPA Act, the Development Control Order as ‘Annexure A’ be the substituted Order.

L Coetzee

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 21 November 2024