Land and Environment Court New South Wales Medium Neutral Citation: Chahoud v Penrith City Council [2021] NSWLEC 1367 Hearing dates: Conciliation conference on 21 June 2021 Date of orders: 21 June 2021 Decision date: 21 June 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Control Order dated 20 January 2021 issued by Penrith City Council pursuant to Part 9, Division 9.3, section 9.34 (Schedule 5, Part 1, Item 10) of the Environmental Planning and Assessment Act 1979 is modified in accordance with Annexure A. Catchwords: DEVELOPMENT CONTROL ORDER – restore works order – conciliation conference – agreement between the parties – parties agree to modified order – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Sirine Chahoud (Applicant) Penrith City Council (Respondent) Representation: Counsel: N Nadj (Solicitor) (Applicant) M Pearce (Solicitor) (Respondent) Solicitors: Scheib Legal (Applicant) Penrith City Council (Respondent) File Number(s): 2021/44547 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development control order issued by Penrith City Council on 20 January 2021. The development control order is a Restore Works Order, which requires the applicant to restore the property at 1107-1115 Mamre Road, Kemps Creek, to the state and condition that it was in before unlawful landfilling was carried out on the site. The terms of the order required the removal of the fill and its disposal off-site. 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 Part 1 of Schedule 5 to the EPA Act. Item 10 in the table allows a development control order to be issued as a Restore Works Order to the owner of premises if unauthorised works have been carried out, requiring the recipient of the order to restore premises to the condition in which they were before the unlawful works occurred. The applicant appeals against the order pursuant to s 8.18 of the EPA Act. 2. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, 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. 1. 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 21 June 2021. I presided over the conciliation conference. 2. 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 is that the order is modified so as to confine the areas from which the fill is required to be removed to two areas within the rear of the site, and allow the fill to be relocated within a defined area elsewhere on the site. The modified order also requires the rehabilitation and restoration of those two areas, including the replanting of trees. The modification to the order was agreed as a result of a report prepared by 4Pillars Environmental Consulting Pty Ltd and dated January 2021, that demonstrates that the fill, which had been imported to the site, is not contaminated. The modified order is Annexure A to the orders recorded in [7] below. 3. As the presiding Commissioner, I am 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 (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. 4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, 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)). I therefore make orders in accordance with the agreement of the parties. 5. The Court orders that: 1. The appeal is upheld. 2. Development Control Order dated 20 January 2021 issued by Penrith City Council pursuant to Part 9, Division 9.3, section 9.34 (Schedule 5, Part 1, Item 10) of the Environmental Planning and Assessment Act 1979 is modified in accordance with Annexure A. ……………………………….. J Gray Commissioner of the Court Annexure A (526125, 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: 21 June 2021