The Catering Group Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1136

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Catering Group Pty Ltd v City of Parramatta Council [2023] NSWLEC 1136

Hearing dates:

Conciliation Conference on 3 February 2023

Date of orders:

28 March 2023

Decision date:

28 March 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

In proceedings 2022/254072, the Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order issued by the Respondent to the Applicant dated 29 July 2022 under s 9.35(1)(b) and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) is, pursuant to s 8.18(4)(b) of the EPA Act, modified in accordance with the Development Control Order at Annexure A.

In proceedings 2022/271916, the Court orders that:

(1) The appeal is upheld.

(2) Modification Application DA/469/2016/B to modify DA/469/2016 is approved.

(3) Development consent DA/469/2016 is modified in the terms in Annexure A.

(4) As a consequence of order (3), Development consent DA/469/2016 is subject to the consolidated conditions set out in Annexure B.

Catchwords:

APPEAL – modification application – APPEAL – development control order – conciliation conference – agreement reached in both appeals – orders made to modify development control order – orders made granting modification application

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.18, 9.34, Sch 5, Pt 1

Environmental Planning and Assessment Regulation 2021, cl 113

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

The Catering Group Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
L Sims (Applicant)
C Nuttall (Solicitor)(Respondent)

Solicitors:
Bick & Steele (Applicant)
City of Paramatta Council (Respondent)

File Number(s):

2022/254072
2022/271916

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: The applicant has lodged two appeals with respect to decisions of the respondent concerning Shop 3, 48 Baywater Drive, Wentworth Point (“the premises”). The premises benefit from a development consent (DA/469/2016 and DA/469/2016/A) that authorises the change in use of Shop 3 to a food premises, subject to conditions. The first appeal concerns a development control order issued by the respondent on 29 July 2022 following the contravention of conditions of development consent (the order appeal), and the second appeal concerns an application to modify the development consent, which was refused by the respondent on 25 August 2022 (the modification appeal). In each appeal, the final orders, which are set out below at [17] and [19], are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The development control order the subject of the order appeal requires the applicant to stop cooking from the premises until such time as the mechanical exhaust required by condition 70 of the development consent has been installed and an occupation certificate issued, and to stop use of a storeroom for food preparation and storage. 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 to the EPA Act. Item 1 of Pt 1 of Sch 5 allows a development control order to be issued as a Stop Use order where premises are being used in contravention of a planning approval. The applicant appeals against the order pursuant to s 8.18 of the EPA Act.

3. The modification application the subject of the modification appeal sought to delete condition 70 of the development consent, which concerns the requirement for the mechanical exhaust. The appeal is lodged pursuant to s 8.9 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act.

4. In both appeal proceedings, 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 3 February 2023. I presided over the conciliation conference.

5. Following the conciliation conference, agreements under s 34(3) of the LEC Act were reached between the parties as to the terms of a decision in each of the appeal proceedings that are acceptable to the parties.

6. In the order appeal, the signed agreement was filed on 3 March 2023. The terms of a decision that is agreed upon is for the order to be modified so that is requires that the applicant cease only the preparation and cooking of food that requires mechanical ventilation under AS1688.2 2012, and cease the use of the storeroom for food preparation and storage.

7. In the modification appeal, there were a number of iterations of the signed agreement and the final signed agreement was filed on 21 March 2023. The agreement was reached following the Council’s approval of an application for an amendment to the modification application pursuant to cl 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The amended modification application includes an acoustic assessment and results in clarity as to what is required of the mechanical exhaust system.

The power to make orders in accordance with the agreement on the order appeal

8. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to modify the order in the agreed terms 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).

9. Item 1 of Pt 1 of Sch 5 of the EPA Act allows a stop use order to be issued to the person using premises where premises are being used in contravention of a planning approval. The applicant is the person using the premises, and has been using the premises contrary to the condition of the development consent that concerns the mechanical exhaust system. Similarly, they have been using the store in a manner that is not consistent with what is approved by the development consent. For those reasons, the statutory basis for the issue of a stop work order is met.

10. Further, s 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are as follows:

(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. I am satisfied that the power under s 8.18(4)(b) is sufficiently broad to enable the Court to make orders to modify the development control order in the manner agreed by the parties.

12. I am therefore 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, for the reason that there is a statutory basis under Item 1 of Pt 1 of Sch 5 of the EPA Act to issue a development control order, and s 8.18(4) gives the Court the power, on the hearing of the appeal, to modify the development control order.

The power to make orders in accordance with the agreement on the modification appeal

13. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision is one 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). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reasons that it does not alter any essential element of the development and concerns changes only to aspects of the mechanical exhaust system.

14. I note also that the parties agree that the modification application was not required to be notified by either the EPA Regulation or the applicable development control plan.

Final orders

15. Having reached the state of satisfaction that each of the decisions agreed upon are decisions that the Court could make in the exercise of its functions in each of the appeal proceedings, 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)).

16. In making the orders to give effect to the agreement between the parties on the modification application, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

17. In proceedings 2022/254072, the Court orders that:

1. The appeal is upheld.

2. The Development Control Order issued by the Respondent to the Applicant dated 29 July 2022 under s 9.35(1)(b) and Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) is, pursuant to s 8.18(4)(b) of the EPA Act, modified in accordance with the Development Control Order at Annexure A.

18. In proceedings 2022/271916, the Court notes that:

1. The Respondent, as the relevant consent authority, has approved under cl 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant’s application to amend modification application DA/469/2016/B in accordance with the plans and documents listed at condition 1 of Annexure A.

2. The Applicant filed the amended modification application with the Court on 7 March 2023.

19. In proceedings 2022/271916, the Court orders that:

1. The appeal is upheld.

2. Modification Application DA/469/2016/B to modify DA/469/2016 is approved.

3. Development consent DA/469/2016 is modified in the terms in Annexure A.

4. As a consequence of order (3), Development consent DA/469/2016 is subject to the consolidated conditions set out in Annexure B.

J Gray

Commissioner of the Court

Annexure A (22/254072)

Annexure A (22/271916)

Annexure B (22.271916)

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Decision last updated: 28 March 2023