Land and Environment Court New South Wales Medium Neutral Citation: Crookston v Liverpool City Council [2021] NSWLEC 1739 Hearing dates: Conciliation conference held on 29 November 2021 Date of orders: 7 December 2021 Decision date: 07 December 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: 1) The appeal is upheld. 2) Pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979, the Development Control Order in Annexure A to this agreement is substituted for the Development Control Order given by the Respondent to the Applicant on 17 September 2021. Catchwords: DEVELOPMENT CONTROL ORDERS – permissibility of use for transport depot – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Pt 1 of Sch 5 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Liverpool Local Environmental Plan 2008, cl 2.3 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: Michael Crookston (Applicant) Liverpool City Council (Respondent) Representation: Counsel: Crookston (Self represented) (Applicant) Liverpool City Council (Respondent) File Number(s): 2021/292389 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against a Development Control Order (Stop Use) made on 17 September 2021 by the Liverpool City Council (hereafter the Council), which relates to the undertaking of a business for a prohibited purpose on Lot 17 DP 713582, also known as 45 Racemosa Close, Kemps Creek (hereafter the site). 2. The Council issued the Development Control Order (hereafter the Order) to stop the use of the site for the undertaking of a (Transport Deport related) business other than in accordance with the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) on 17 September 2021, because it is a prohibited use on the site. 3. The Order was issued pursuant to s 9.34(1) and Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act), as the premises was being used for a prohibited purpose. The terms of the orders are as follows: 1. "To stop using premises as a Transport Depot by removing all trucks and trailers from the premises". 1. This Class 1 appeal against the Order is made under s 8.18(1) of the EPA Act. 2. 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 29 November 2021 by MS Teams, and without a site view. 3. Based on the substituted 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 is agreed by the parties as being in accordance with the permissible use of the site, and pursuant to the zoning of the land. The substituted Order requires the applicant to reframe from using the site for the purpose of a Transport Depot business, after an agreed period of time. The parties agree that based on the substituted Order, the Court has power as sought by the parties, pursuant to s 8.18(4)(c) of the EPA Act. The substituted orders are as follows: 1. From 24 December 2021 to 31 March 2022 no truck movements to and from the premises are to occur between 8pm-6am. 2. During the period 24 December 2021 to 31 March 2022, only the following 3 trucks and trailers (XN25HI, CP23YX and CB42UT) are permitted to enter and leave the premises. 1. The parties agree that the contentions of Council have been considered and are resolved by the substituted order. The parties have also considered and addressed the issues raised by resident/s. The parties agree that the terms of the substituted Order are capable of being complied with in the timeframe as identified. 2. 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)(c) of the EPA Act, to substitute the Order, as described in Annexure 'A'. 3. The parties identified the jurisdictional prerequisites of relevance in these proceedings, as being consistent with the Liverpool Local Environmental Plan 2008 (LLEP) and the SEPP. 4. The site is located within land zoned RU4 Primary Production, pursuant to cl 2.3 of the LLEP. The zoning of the site constrains a transport related business operating on the site, which is not permissible. The substituted Orders have considered, and are consistent with, the definition of a 'Transport Depot', as described in the LLEP. 5. By the substitution of the Order, the parties agree that the relevant requirements of the EPA Act, SEPP and LLEP are satisfied, and that the Court should not be constrained to substitute the Order, as agreed. 6. The terms of the substituted Order have been considered in the context of the site, reasonable needs of the applicant and relevant legislative provisions. As explained to the Court, the parties agree that all jurisdictional requirements are resolved. 7. 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 substitution of the Order, pursuant to s 8.18(4)(b) of the EPA Act. 8. 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. 9. The Court orders: 1. The appeal is upheld. 2. Pursuant to s8.18 of the Environmental Planning and Assessment Act 1979, the Development Control Order in Annexure A to this agreement is substituted for the Development Control Order given by the Respondent to the Applicant on 17 September 2021. ………………………… Sarah Bish Commissioner of the Court (Annexure A) (488024, 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: 07 December 2021