Watman v Northern Beaches Council

[2021] NSWLEC 1487

Land and Environment Court

New South Wales

Medium Neutral Citation:

Watman v Northern Beaches Council [2021] NSWLEC 1487

Hearing dates:

Conciliation conference held on 18 August 2021

Date of orders:

25 August 2021

Decision date:

25 August 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) A Development Control Order made pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, issued by the Respondent to the Applicant, dated 24 November 2020 is modified as set out in Annexure 'A'.

(3) The Development Control Order at Annexure A is made pursuant to Division 9.3, Schedule 5 (Order Number 1) of the Environmental Planning and Assessment Act 1979.

(4) The modified Development Control Order is to be in the terms set out in Annexure “B”.

Catchwords:

DEVELOPMENT CONTROL ORDERS – permissibility of use – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Protection Act 1979, s 9.34, 8.18, Part 1 of Schedule 5

Environmental Planning and Protection Regulation 2000, cl 55

Land and Environment Court Act 1979, s34

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Warringah Environmental Plan 2011, cl 2.3

Category:

Principal judgment

Parties:

Carol May Watman (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
R Smallwood (Solicitor) (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Smallwoods Lawyers (Applicant)
Storey & Gough (Respondent)

File Number(s):

2020/356448

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against a Development Control Order made by the Northern Beaches Council (hereafter the Council) which relates to the undertaking of business as a prohibited use on Lot 88 DP 224759, also known as 29 Peacock Parade, Frenchs Forest (hereafter the site).

2. The Council issued the Development Control Order (hereafter the Order) to stop using the site for the undertaking of a business other than in accordance with the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) on 24 November 2020, and which is prohibited on the site.

3. The orders were issued pursuant to s 9.34(1) and Part 1 of Schedule 5 of the Environmental Planning and Protection Act 1979 (EPA Act). The terms of the orders are as follows:

1. To stop using the premises known as 29 Peacock Parade Frenchs Forest for the undertaking of a business other than in accordance with the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 and the definition of a ‘home business’ or ‘home occupation’ under the Standard Instrument – Principal Local Environmental Plan.

2.   Compliance with item 1 requires relocation of the mobile showroom associated with the business (T/A Sleep Electric) to an approved storage / parking facility or other suitable offsite facility to avoid causing interference to the amenity of the neighbourhood.

4. This Class 1 appeal against the Order is made under s 8.18(1) of the EPA Act.

5. The Court agreed to the parties’ request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 18 August 2021 by MS Teams, and without a site view.

6. Based on the modifications to the Order, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The constraint on use of the site, the subject of the modified Order, is agreed by the parties as being in accordance with the permissible uses of the site, and pursuant to the zoning of the land. The modified Order requires the applicant to reframe from using the site for the purpose of a business, although the applicant can store a trailer containing a mobile showroom on the site. The parties agree that based on the modified Order, the Court has power as sought by the parties, pursuant to s 8.18(4)(b) of the EPA Act. The parties agree that based on the modified Order, the Court has power as sought by the parties, pursuant to s 8.18(4)(b) of the EPA Act. The modified orders are as follows:

1. To stop using the premises known as 29 Peacock Parade Frenchs Forest (the Premises) for the purpose of a business premises as defined by Warringah Local Environmental Plan 2011.

2. Notwithstanding Order 1 above the premises may be used for the purpose of a home business as defined by the Standard Instrument – Principal Local Environmental Plan including for the storage of a trailer containing a mobile showroom (the mobile showroom trailer) if carried out in accordance with the conditions contained in Schedule A.

   7. The parties agree that the contentions of Council have been considered and are resolved. The parties have also considered and addressed the issues raised by residents. The parties agree that the terms of the modified Order are capable of being complied within the timeframe identified.

   8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 8.18(4)(b) of the EPA Act, to modify the Order, as described in Annexure ‘A’.

   9. The parties identified the jurisdictional prerequisites of relevance in these proceedings, as being consistency with the Warringah Environmental Plan 2011 (WLEP) and the SEPP.

   10. The site is located within land zoned R2 Low Density Residential, pursuant to cl 2.3 of the WLEP. The use of the site as residential and to constrain a business operating on the site, is permissible without consent. The modified Orders have considered, and are consistent with, the definition of a home business and/or home industry, as described in the WLEP.

   11. By the modification of the Order, the parties agree that the relevant requirements of the EPA Act are satisfied and that the Court should not be constrained to modify the Order, as agreed.

   12. The terms of the modified Order have been considered in the context of the site and other relevant legislative provisions. As explained to the Court, the parties agree that all jurisdictional requirements are resolved.

   13. Based on the evidence before me, as provided by the parties in the conciliation, I am satisfied that there are no jurisdictional impediments to the modification of the Order, pursuant to s 8.18(4)(b) of the EPA Act.

   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) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.

   15. The Court orders:

   1. The appeal is upheld.

   2. A Development Control Order made pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, issued by the Respondent to the Applicant, dated 24 November 2020 is modified as set out in Annexure 'A'.

   3. The Development Control Order at Annexure A is made pursuant to Division 9.3, Schedule 5 (Order Number 1) of the Environmental Planning and Assessment Act 1979.

   4. The modified Development Control Order is to be in the terms set out in Annexure “B”.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (103704, pdf)

Annexure B (190243, pdf)

**********