Land and Environment Court New South Wales Medium Neutral Citation: Doimo v Queanbeyan-Palerang Regional Council [2021] NSWLEC 1417 Hearing dates: Conciliation conference on 7 July 2021 Date of orders: 23 July 2021 Decision date: 23 July 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development control order dated 16 February 2021 issued by Queanbeyan-Palerang Regional Council pursuant to Part 9, Division 9.3, section 9.34 (Schedule 5, Part 1, Item 2) of the Environmental Planning and Assessment Act 1979 is substituted for the development control order set out at Annexure A to these orders. Catchwords: APPEAL – development control order – stop works order – restore works order – earthworks – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, 9.35, Schedule 5 Land and Environment Court Act 1979, s 34 Palerang Local Environmental Plan 2014, cl 6.1 Protection of the Environment Operations Act 1997, Part 3 of Schedule 1 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: Sandro Doimo (First Applicant) Tania Elizabeth Wilson (Second Applicant) Queanbeyan-Palerang Regional Council (Respondent) Representation: Counsel: G Shapiro (Solicitor) (Applicants) A Menyhart (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicants) Bradley Allan Love Lawyers (Respondent) File Number(s): 2021/74174 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against a development control order namely a Stop Work Order Part 1 Order Number 2 issued 16 February 2021 by the Queanbeyan-Palerang Regional Council (QPRC) to the Applicants pursuant to s 9.34(1) of the EPA Act 23 The Mountain Road, Bungendore legally described as Lot 1 in DP 1191989 (the Site) to immediately: "Term 1: Cease all works in relation to with the importation of fill, soil, gravel and the like onto the premises. Terms 2: Cease any works in relation to the spread of fill, soil, gravel, or the like referred to in Term 1." 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 has been held on 7 July 2021. I have presided over the conciliation conference. 2. 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 the Court upholding the appeal and substituting the development control order with another order that the QPRC could have given. 3. 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)(c) of the EPA Act to substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given. 4. 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 to be the terms of ss 8.18, 9.34, 9.35 and Schedule 5 of the EPA Act to substitute a development control order with an order that the QPRC could have given. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed document titled "Submissions on Jurisdictional Preconditions". I summarise the explanation given by the parties and set out my reasons as follows: 1. Section 8.18(4)(c) of the EPA Act provides the Court with the power to substitute for the Stop Works development control order any other order that the relevant enforcement authority who gave the order could have given. The substituted order will be a Restore Works development control order. 2. The Court needs to be satisfied that firstly there is a development control order that has been issued by the QPRC and secondly that the substitution order is an order that the QPRC could have given. 3. I am satisfied that there is a development control order, namely issued by the QPRC on 16 February 2021 which is the subject of this appeal. The QPRC is a relevant enforcement authority under s 9.35 of the EPA Act and therefore had power to issue the development control order and that the QPRC has the power to give general orders pursuant to s 9.34 in accordance with the table to Part 1 of Schedule 5 of the EPA Act. 4. The works which are the subject of the development control order are earthworks which is development of a kind that can only be carried out with consent on the Site pursuant to cl 6.1 of the Palerang Local Environmental Plan 2014. I am satisfied that the earthworks the subject of the development control order was carried out otherwise than in accordance with consent. I note that on 13 November 2020, QPRC granted development consent to DA.2020/1450 for a garage and carport, retaining walls, earthworks and amendment to the building envelope (the Development Consent) on the Site. The extent of the earthworks undertaken exceeds the terms of the Development Consent being observed by QPRC's officer to be over 6 m in height, 60 m in length and 30m wide and located outside the footprint of the garage/carport approved in the Development Consent. Further, no construction certificate has been registered with QPRC relating to the earthworks or the Development Consent. For completeness I also note that the earthworks carried out on the Site do not fall within a category of exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as they do not comply with the development standards for exempt development, namely the imported fill is greater than 600mm in height from natural ground level and there is insufficient evidence to establish that the imported fill is virgin excavated natural material (VENM) as defined in Part 3 of Schedule 1 to the Protection of the Environment Operations Act 1997. 5. The agreement reached between the parties is to substitute the Stop Works Order (Order 2 in the Table to Part 1 of Schedule 5 of the EPA Act) with a Restore Works Order (Order 10 in the Table to Part 1 of Schedule 5 of the EPA Act). This agreement was reached as a result of the QPRC being satisfied that the Applicants have ceased bringing in fill to the Site and the Applicants agreeing to remove the excess fill, and bring the Site into compliance with the Development Consent. 6. Finally, the Restore Works Order is an order pursuant to Item 10 in the table to Part 1 of Schedule 5 of the EPA Act which requires certain circumstances or preconditions to be satisfied as follows: Schedule 5 Development control orders Part 1 General orders Column 1 Column 2 Column 3 To do what? When? To whom? Restore Works Order • The owner of the premises 10 To restore premises to the condition in which they were before unlawful building or other works occurred An unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out. • Any person entitled to act on a planning approval or acting in contravention of a planning approval • In relation to work unlawfully carried out that was the deposit of material in a public place, the person responsible for unlawfully depositing material in a public place 1. As stated above, I am satisfied that the earthworks are unauthorised works and the Court has been provided with a title search of the Site establishing that the Applicants are the owners of the Site as tenants in common in equal shares. 2. For the reasons set out in this judgment 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. 3. 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. 4. The Court orders: 1. The appeal is upheld. 2. Development control order dated 16 February 2021 issued by Queanbeyan-Palerang Regional Council pursuant to Part 9, Division 9.3, section 9.34 (Schedule 5, Part 1, Item 2) of the Environmental Planning and Assessment Act 1979 is substituted for the development control order set out at Annexure A to these orders. ………………………. E Espinosa Commissioner of the Court Annexure A (874342, 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: 23 July 2021