Land and Environment Court New South Wales Medium Neutral Citation: Timothy A Nicolson Pty Ltd v The Hills Shire Council [2021] NSWLEC 1256 Hearing dates: Conciliation conference on 29 March 2021, 27 April 2021 and 3 May 2021 Date of orders: 19 May 2021 Decision date: 19 May 2021 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: (1) The appeal is upheld. (2) The Development Control Order issued to the Applicant on 21 September 2020 by The Hills Shire Council in relation to Lot 208 DP 752025 and Lot 214 DP 752025 known as 1596-1598 Wisemans Ferry Road Maroota NSW is varied as set out in Annexure 'A'. Catchwords: DEVELOPMENT CONTROL ORDER – appeal against terms – conciliation conference – agreement between the parties – order varied Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, 9.35, Schedule 5 Part 1 Land and Environment Court Act 1979, ss 17, 34, 64 Roads Act 1993 Category: Principal judgment Parties: Timothy A Nicolson Pty Ltd (Applicant) The Hills Shire Council (First Respondent) Transport for New South Wales (Second Respondent) Representation: Counsel: Dr J Smith (Applicant) A Hudson (Solicitor) (First Respondent) M Winram (Solicitor) (Second Respondent) Solicitor: Peter Prior & Co Solicitors (Applicant) Wilshire Webb Staunton Beattie (First Respondent) Maddocks (Second Respondent) File Number(s): 2020/295096 Publication restriction: No Decision under appeal File Number(s): 2020/295096 JUDGMENT 1. COMMISSIONER: The Applicant has appealed against a Development Control Order dated 21 September 2020 (Order), issued by The Hills Shire Council (Council), being an Order Number 13 pursuant to s 9.34(1)(a) and Schedule 5 Part 1 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The appeal is brought under s 8.18(1) of the EPA Act seeking an order under s 8.18(4) that the Council's Order be revoked. 3. The Class 1 appeal falls within the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 4. The statutory function to be exercised by the Court is under s 8.18(4) of the EPA Act. 5. The land subject to Development Consent 1310/2010/ZB (the Consent) is identified as Lot 208 in Deposited Plan 752025 and Lot 214 in Deposited Plan 752025, and known as 1596-1598 Wisemans Ferry Road, Maroota (the site). 6. The Order relates to the site as well as an unformed and unnamed public road that dissects the site, and extends south-east to Wisemans Ferry Road between 1584, 1592, 1594 and 1600 Wisemans Ferry Road and 4384-4406 Old Northern Road, Maroota (Consent Road). 7. While the Council is the roads authority for Wisemans Ferry Road, it is a classified road under the Roads Act 1993. This means that Transport for NSW (TfNSW) maintains Wisemans Ferry Road which is the constructed road to the edge of the carriageway and Council maintains the road shoulder and verge within the remainder of the road reserve. 8. Pursuant to s 64 of the LEC Act TfNSW has become a party to the proceedings on behalf of the Crown, as Second Respondent. 9. With the consent of the parties, Ms L Sims of counsel represented the neighbours, Mr and Mrs Muscat (the owners of 1598 Wisemans Ferry Road). Mr and Mrs Muscat consented to the terms of the modified Order and it was therefore not necessary to have them joined as a party to the proceedings. 10. The site is 70.72 hectares in size and irregularly shaped. The Consent Road dissects the site along the ridgeline. The Consent Road extends south-east to Wisemans Ferry Road between 1584, 1592, 1594 and 1600 Wisemans Ferry Road and 4384-4406 Old Northern Road, Maroota, and continues north-west into the adjacent Crown Reserve, and is currently used as a fire trail. There is a large clearing on either side of the Consent Road within the site with remnant native vegetation beyond. The seven rural residential lots created by the Consent are located within this clearing, and a fire trail has been constructed around the perimeter between the clearing and the remnant native vegetation beyond as required by the Consent for bushfire fighting purposes. There are no existing structures or other improvements on the site. 11. The site is owned by the Applicant company. 12. The surrounding properties are all predominantly rural residential in nature, with a quarry more than 1 kilometre to the east of the site. 13. The Court arranged a conciliation conference under s 34(1) of LEC Act between the parties, which was held on 29 March 2021 and 27 April 2021. I presided over the conciliation conference. 14. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal, and varying the Order. 15. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act, to uphold the appeal and vary the Order. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings as set out below together with how the jurisdictional prerequisites have been satisfied: 1. The Council issued an Order 13 under Schedule 5 Part 1 of the EPA Act. 2. The Applicant appealed against this Order under s 8.18(1) of the EPA Act within the time limit as set out in s 8.18(3)(a). 3. The Applicant is the owner of Lot 208 DP 752025 and Lot 214 DP 752025, known as 1596-1598 Wisemans Ferry Road, Maroota, and the Applicant has the benefit of the Consent as modified for the subdivision of the site to create 7 rural lots and the creation of a road. 4. The Consent also required incidental works to the site to be carried out on: 1. the Consent Road that provides access to the site from Wisemans Ferry Road, and 2. on Wisemans Ferry Road near the intersection of Wisemans Ferry Road and the Consent Road. 1. The Consent was issued on 2 December 2010. There were modifications to the Consent on 12 January 2012, 2 July 2012 and 9 January 2014. The first Construction Certificate was issued on 5 July 2012 and there were two amended Construction Certificates on 5 July 2012 and 18 January 2019. The Construction Certificate as amended on 18 January 2019 specifically provided for amended incidental works to be carried out on Wisemans Ferry Road in accordance with then Roads and Maritime Services' (now TfNSW) approved plans. 2. The Applicant commenced the authorised works referred to in the Consent before the Consent lapsed but the works have not been completed (Column 2 of Order 13). 3. The Applicant is the owner of the relevant land, being the land that is to be subdivided pursuant to the Consent (Column 3 of Order 13). 4. The modified Order (as agreed during the s 34 Conciliation Conference) requires the Applicant to complete the authorised works under the Consent within a specified time (Column 1 of Order 13). 5. The works to be carried out on the Consent Road and Wisemans Ferry Road are part of, and have been approved under, the Consent so these works must be completed as part of the Order. 6. The Council as the owner of the Consent Road and Wiseman's Ferry Road, and TfNSW as Wisemans Ferry Road is a classified road, consent to the works referred to in the modified Order being carried out. 7. The parties have agreed that the authorised works are to be modified so that the authorised works for Wisemans Ferry Road are as shown in the final item K plans referred to in item (k) to the modified Order. 8. The modified Order requires the Applicant to complete all the authorised works under the Consent within a specified time being by 31 August 2021. 9. The modified Order as agreed in the s 34 Conciliation Conference is Annexure 'A' hereto. Legislation Environmental Planning and Assessment Act 1979 9.34 Orders that may be given (cf previous s 121B) (1) The development control orders that may be given under this Act are as follows— (a) general orders in accordance with the table to Part 1 of Schedule 5, (b) fire safety orders in accordance with the table to Part 2 of Schedule 5, (c) brothel closure orders in accordance with the table to Part 3 of Schedule 5. (2) The regulations may amend those tables. (3) A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate). Note— See also Part 4 of the Building Products (Safety) Act 2017. 9.35 Relevant enforcement authorities who may give orders (cf previous ss 121B, 121C) (1) Development control orders may be given by the following (a relevant enforcement authority)— (a) the Minister or the Planning Secretary, but only in connection with State significant development, State significant infrastructure or any other development for which the Minister, the Planning Secretary or the Independent Planning Commission is or has been the consent authority, (b) a council, …… 8.18 Appeals concerning orders (cf previous s 121ZK) (1) A person who is given a development control order may appeal to the Court against the order. (2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises). (3) The appeal may be made only— (a) within 28 days after the development control order is given to the person, or (b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person. (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. Schedule 5 Development Control Orders Part 1 General Orders Column 1 Column 2 Column 3 To do what? When? To whom? To complete authorised works under a planning approval within a specified time The authorised works have commenced, but have not been completed, before the planning approval would (but for the commencement of the works) have lapsed. The owner of the relevant land Land and Environment Court Act 1979 17 Class 1—environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following— … (d) appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979, … 1. A summary of the major works to be carried out in the modified Order are as follows: 1. Regarding the Consent Road near chainage 400: Item (a) amended to carry out works as shown in the Internal Driveway Regrade Plan attached to the modified Order as Annexure 'A'. 2. Item (b): Carry out fencing and gravel removal works as shown on the Fencing and Removal of Gravel Material Plan attached to the modified Order as Annexure 'B'. The owners of the adjoining property to be given 10 days' notice of works commencing. 3. Item (c) – replace with as set out in Annexure 'A', which in summary is to complete the pavement works (sealing) of the Consent Road, and the capping of the buried contaminated materials to finish level with surface so that the edge of the geofabric is visible, such work near the contaminated material not to damage its capping, and to be signed off by an environmental consultant. 4. Items (d) and (e) remain unchanged. 5. Item (f): stabilise the sections of the table drain where scouring is evident in relation to the section of Council road forward of chainage 400 where there is a proper, deeper table drain. 6. Items (g): Applicant to provide evidence to the Council of the nature and source of the material that was placed on the road in the area from A-B shown on the Fill Location Plan attached to the modified Order as Annexure 'C'. 7. Item (h) deleted. 8. Item (i): removal of all fencing and gates and open the completed road to through traffic. 9. Item (j) deleted. 10. Item (k): replaced with Item (k) in the modified Order: The Applicant to provide to Council and TfNSW by 26 May 2021 the following additional information in relation to the proposed works shown in the Intersection Design Plan No 11263E1.02 Revision W dated 23 April 2021 and Driveway Sections Plan No. 110263SK103 Revision A dated 23 April 2021 annexed to the modified Order as Annexure 'D'. The Applicant to comply with subparagraphs (a) – (n) of Item (k) as well as the final 4 paragraphs. The Applicant must carry out the works in accordance with the final item K material which is the material finally approved by Council and TfNSW. 11. Items (l) and (m) deleted. 12. Item (n): TfNSW to provide an updated defects list (if any) to the Applicant in replacement for the list dated 18/11/19, and the Applicant to rectify any defects listed in the new defects list. 13. Item (o): provide a completed quality assurance package for the works in Item (k) from the contractor. 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 1. The Council gave the Order pursuant to s 9.34(1)(a) of the EPA, and it has the power to give the Order pursuant to s 9.35(1)(b) of the EPA Act. 2. I have jurisdiction to hear and determine the matter pursuant to s 17(d) of the LEC Act and s 8.18(4) of the EPA Act. 3. The Applicant is the owner of the site, and appealed within the time provision of s 8.18(3)(b) of the EPA Act. 4. The parties negotiated without prejudice and in good faith to reach an agreement. I have power to vary the Order pursuant to s 8.18.4(b) of the EPA Act. 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. 1. The Court orders: 1. The appeal is upheld. 2. The Development Control Order issued to the Applicant on 21 September 2020 by The Hills Shire Council in relation to Lot 208 DP 752025 and Lot 214 DP 752025 known as 1596-1598 Wisemans Ferry Road Maroota NSW is varied as set out in Annexure 'A'. ………………………… M Peatman Acting Commissioner of the Court Annexure A (1122026, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2021