Land and Environment Court New South Wales Medium Neutral Citation: Fitzpatrick v Penrith City Council [2022] NSWLEC 1575 Hearing dates: Conciliation conference on 9 & 24 August 2022; 1 September 2022 Date of orders: 2 November 2022 Decision date: 02 November 2022 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders: (1) The appeal is upheld. (2) Development Control Order issued by the Respondent to the Applicants on 8 April 2022 under Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) is, pursuant to s 8.18(4)(b) of the Act, modified in accordance with the Development Control Order in Annexure A. Catchwords: DEVELOPMENT CONTROL ORDER – unauthorised structures – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, 9.35, Sch 5 Pt 1 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: David Fitzpatrick (First Applicant) Kelly Fitzpatrick (Second Applicant) Penrith City Council (Respondent) Representation: Counsel: L Sims (Applicants) A Avery (Solicitor) (Respondent) Solicitors: Bick & Steele (Applicants) Penrith City Council (Respondent) File Number(s): 2022/128031 Judgment 1. COMMISSIONER: The Applicants, Mr and Mrs Fitzpatrick, appeal in Class 1 Miscellaneous Appeals pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the issuing of a Development Control Order (DCO) by the Respondent, Penrith City Council, pursuant to ss 9.34, 9.35 and Part 1 Schedule 5 of the EPA Act. 2. The DCO was issued by the Respondent to the Applicants as the owners of the premises described as Lot 226 DP 708572 and known by the street address 13 Colorado Drive, St Clair. 3. The DCO required the removal of five structures on the property which do not have Council approval and were unauthorised. The terms of the DCO required the Applicants to remove the five structures by 26 August 2022. 4. The Court arranged for a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held on 9 August 2022. I presided over the conciliation conference. 5. The matter commenced on site where the five structures were observed. The Court also heard submissions from two residents in Raleigh Close, whose properties abutted the rear of 13 Colorado Drive. They raised concerns including noise, light spill and impacts on the drainage of their gardens. 6. After the site inspection confidential without prejudice discussions between the parties and their experts occurred at Penrith Council Chambers. The s34 conciliation conference was adjourned but discussions between the parties continued. The parties reached agreement as to the terms of a decision that would be acceptable to the parties. A signed agreement was filed by the parties on 27 October 2022. 7. The original DCO required the Applicants to remove five unauthorised structures. The s34 agreement involves issuing a modified DCO under which the orders relating to the following three unauthorised structures need not be complied with if steps are taken to obtain a building information certificate (BIC) in relation to removal of the laundry building: the removal of the northmost 900mm section of the rear dwelling pergola and removal of side pergola 1. 8. The pool area pergola and side pergola 2 are to be moved within 60 days of the making of the orders by the Court. 9. If agreement is reached as a result of the s 34 conciliation and the decision is one that the Court could have made in the proper exercise of its function, I must dispose of the proceedings in accordance with the decision, and must set out in writing the terms of the decision (s 34(3) of the LEC Act). The parties' decision involves the Court exercising the power to modify the DCO pursuant to s 8.18(4)(b) of the EPA Act. 10. The parties provided me with a written statement of jurisdiction, and they were satisfied that the relevant jurisdictional prerequisites were satisfied: 1. The Court has jurisdiction to modify a DCO the subject of an appeal pursuant to s 8.18(4)(b) of the EPA Act. 2. The modified DCO is an order that can be given pursuant to Item 3, Pt 1 of Sch 5 of the EPA Act in that: 1. The unauthorised structures described in the modified DCO is a "building" pursuant to the EPA Act; 2. The building(s) subject to the modified DCO were erected without development approval; and 3. The DCO was issued to David Fitzpatrick and Kelly Fitzpatrick who are the owners of the land concerned. 1. The background to the DCO and the reasons for giving the order are set out in the order. 2. The parties informed me that they were not aware of any other reasons which would prevent the Court from making the orders modifying the DCO. 3. The Court notes the parties have agreed that each party will pay its own costs. 4. The Court orders: 1. The appeal is upheld. 2. Development Control Order issued by the Respondent to the Applicants on 8 April 2022 under Schedule 5 of the Environmental Planning and Assessment Act 1979 (NSW) is, pursuant to s 8.18(4)(b) of the Act, modified in accordance with the Development Control Order in Annexure A. …………………… P Adam Acting Commissioner of the Court Annexure A (985830, 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: 02 November 2022