Vaccaro Developments Pty Limited v Fairfield City Council

[2024] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vaccaro Developments Pty Limited v Fairfield City Council [2024] NSWLEC 1076

Hearing dates:

Conciliation conference on 23 February 2024

Date of orders:

27 February 2024

Decision date:

27 February 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order issued by the Respondent to the Applicant on 26 July 2023 under 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’.

Catchwords:

APPEAL – development control order – stop use order – conciliation conference – agreement to modify order

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

Fairfield Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Vaccaro Developments Pty Limited (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
Z Hamdan El Madi (Solicitor) (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Addisons Lawyers (Applicant)
Houston Dearn O'Connor (Respondent)

File Number(s):

2023/266708

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development control order issued by Fairfield City Council on 26 July 2023 (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 to the EPA Act. The order is a stop use order, issued pursuant to Item 1 of Pt 1 of Sch 5. It requires the applicant to cease use of premises at 763-783 Wallgrove Road, Horsley Park, for the purpose of a transport depot. Item 1 in the table allows a development control order to be issued as a stop use order where premises are being used for a prohibited use. A transport depot is a prohibited use on the land. The applicant, Vaccaro Developments Pty Ltd, appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which modify the order, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 23 February 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which is contained in the signed agreement provided on 16 February 2024. The agreement is for the order to be modified to reflect that the applicant is not the occupier of the site, to allow six months from today’s date for compliance, and to require the removal of a diesel bowser.

The power to make orders in accordance with the agreement

4. 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).

5. The modified order remains an order to stop use of the premises for the purpose of a transport depot. Item 1 of Pt 1 of Sch 5 to the EPA Act allows a development control order to be issued as a stop use order where premises are being used for a prohibited use. The site is zoned RU4 Primary Production Small Lots pursuant to the Fairfield Local Environmental Plan 2013, and a transport depot is a prohibited use in the zone. Therefore, there is power to issue the order.

6. In addition, 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.

7. I am satisfied that the decision to make orders to modify the order in the terms agreed to by the parties 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.

8. Having reached the state of satisfaction that the decision agreed upon is a decision 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)).

9. In making order to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the issues that were originally in dispute between the parties.

10. The Court notes the parties’ agreement that each party is to pay their own costs of the proceedings.

11. The Court orders that:

1. The appeal is upheld.

2. The Development Control Order issued by the Respondent to the Applicant on 26 July 2023 under 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’.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 27 February 2024