Land and Environment Court New South Wales Medium Neutral Citation: ONR Investments Pty Limited v Hornsby Shire Council [2022] NSWLEC 1565 Hearing dates: Conciliation conference on 7 September 2022 Date of orders: 17 October 2022 Decision date: 17 October 2022 Jurisdiction: Class 1 Before: McEwen AC Decision: The Court orders: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by Hornsby Shire Council on 21 April 2022 is modified so that the time for compliance is extended to 29 April 2026. (3) As a consequence of Order (2), the modified Order is in the terms set out in Annexure 'A'. Catchwords: DEVELOPMENT CONTROL ORDER – Stop Use Order – conciliation conference – agreement between the parties – modification of time for compliance - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Pt 1 Sch 5 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: ONR Investments Pty Limited (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: D Briggs (Solicitor) (Applicant) B Lennox (Solicitor) (Respondent) Solicitors: DG Briggs & Associates (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 2022/144370 Publication restriction: No Judgment 1. COMMISSIONER: The nature of the proceedings: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18 of the Environmental Planning & Assessment Act 1979 (EPA Act) against a Development Control Order (DCO) being a Stop Use Order – Order No. 1 issued pursuant to s 9.34(1)(a) and Pt 1 Sch 5 of the EPA Act. 2. The DCO was issued by the respondent to the applicant as the owner of premises legally described as Lot 1 DP 863506 and known as Unit 3 827A Old Northern Road, Dural (premises) on 21 April 2022. 3. The DCO required the applicant to cease using the premises for the purposes of a 'vehicle repair station' as defined in the Dictionary pursuant to the Hornsby Local Environmental Plan 2013 (LEP 2013) and for any use inconsistent with development consents DA/988/2004 and DA/737/2006. The DCO required compliance by 22 May 2022. 4. The premises is located in the B2-Local Centre zone pursuant to LEP 2013. Use for the purpose of a 'vehicle repair station' is prohibited development in that zone. 5. This appeal was filed on 19 May 2022 within the time permitted pursuant to s 8.18(3)(a) of the EPA Act. The statutory power and function to be exercised in determining the proceedings is contained in s 8.18(4) of the EPA Act. 6. The conciliation conference: The Court arranged for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act) which was held on 7 September 2022. I presided over the conciliation conference. 7. The parties' agreement: At the conciliation conference, the parties reached agreement as to the terms of a decision which would be acceptable to the parties. This decision involved the Court upholding the appeal and modifying the DCO by extending the time for compliance with it until 29 April 2026, being the expiry date of an existing lease over the premises held by an incumbent tenant. A signed agreement was filed by the parties on 14 September 2022. 8. Satisfaction of jurisdiction: Under s34(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. In this case, as noted above, the parties' decision involves the Court exercising the power to modify the DCO pursuant to s 8.18(4)(b) of the EPA Act. 9. There are jurisdictional pre-requisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional pre-requisites of relevance in a written statement, to which I make reference below. 10. The parties agree, and I am satisfied, that the DCO was correctly issued and was served upon the owner of the premises. It is further agreed that the DCO was valid in that there existed sufficient circumstances to enliven the power to give the order in the terms of item 1 of Pt 1 of Sch 5 of the EPA Act and that prior to the giving of the DCO there was compliance with the requirements of cll 2, 6, 8 and Pt 7 of Sch 5 of the EPA Act. 11. I consider that the power to modify the DCO and to make the proposed orders is clearly contained within s 8.18(4)(b) of the EPA Act and accordingly, 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. 12. Disposal of proceedings in accordance with the parties' decision: 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. 13. The Court orders: 1. The appeal is upheld. 2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order issued by Hornsby Shire Council on 21 April 2022 is modified so that the time for compliance is extended to 29 April 2026. 3. As a consequence of Order (2), the modified Order is in the terms set out in Annexure 'A'. ……………………… C McEwen Acting Commissioner of the Court Annexure A (1255860, 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: 17 October 2022