Land and Environment Court New South Wales Medium Neutral Citation: Normoyle v Liverpool City Council [2022] NSWLEC 1624 Hearing dates: Conciliation Conference 8 September 2022 Date of orders: 10 November 2022 Decision date: 10 November 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) The Development Application number 405/2022 for development described as 'the addition of a spray booth to an existing smash repair business and towing operation' at Lot 144 DP 17134 and Lot 145 DP 17134, 13-15 Newbridge Road, Chipping Norton, NSW, 2170 is determined by way of the grant of consent subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – development for the purposes of spray booth – existing use rights – amended plans and further information – conciliation conference – agreement reached between the parties – orders made Legislation Cited: County of Cumberland Planning Scheme Ordinance, cl 26 Environmental Planning and Assessment Act 1979, Div 4.11, ss, 4.15, 4.16, 4.65, 4.66, 8.7 Environmental Planning and Assessment Regulation 2000, cll 41, 42 Land and Environment Court Act 1979, s 34 Liverpool Local Environmental Plan 2008 Local Government Act 1919, Ord 71, Part XII A Category: Principal judgment Parties: F Normoyle (Applicant) Liverpool City Council (Respondent) Representation: Counsel: J Doyle (Applicant) C Campbell, (Solicitor) (Respondent) Solicitors: Connor & Co Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2022/184489 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Liverpool City Council of development application DA No 405/2022. The Development Application seeks consent for the addition of a spray booth to an existing smash repair and towing operation at 13-15 Newbridge Road, Chipping Norton (Lot 144 and 145 in DP 17134). 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Development Application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached following a conciliation conference. That decision is that the appeal is upheld and the development application is approved, subject to the conditions annexed to this judgment, pursuant to s 4.16(1) of the EPA Act. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Land and Environment Court Act 1979 (LEC Act). I have formed this state of satisfaction for the following reasons: 1. The Development Application was made with the consent of the owner of the subject site. 2. The Development Application in its original and amended forms has been notified by the Respondent. No submissions were received. 3. The subject site is zoned R2- Low Density Residential development by the Liverpool Local Environmental Plan 2008 (LEP 2008). Applying the definitions in LEP 2008, the proposed development is appropriately defined as a vehicle body repair workshop and a vehicle repair station. These uses are prohibited in the R2 Low Density Residential zone. 4. The Development Application asserts that existing use rights apply, and the Applicant relies on existing use rights pursuant to Div 4.11 of the EPA Act and cl 41(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) to enliven the power of the Court to grant consent. 5. Following a review of the records of the Respondent and affidavit evidence, the parties submit and I agree that the present use of the site as a 'vehicle body repair workshop' and 'vehicle repair station' is an existing use of the kind referred to in s 4.65(a) of the EPA Act. The existing factory 'workshop' building was erected pursuant to the approval of a building application (73/56) under the Local Government Act 1919 and Ord 71 under that Act where it was nominated as 'Garage Workshop Office'. The relevant land for the approval was nominated as 13-15 Newbridge Road. At the time of that building approval, County of Cumberland Planning Scheme Ordinance applied as a schedule under Part XII A of the Local Government Act 1919. Under cl 26 of that Ordinance, 'local light industries' were permitted within the Living Area zoning which applied to the subject site. The parties agree, and I accept, that the smaller scale automotive vehicle repair business could be conducted within the approved workshop and would fall within that category of development. I accept that the use was lawfully commenced with the building approval for 'Garage Workshop Office'. Evidence has established that the use has not been abandoned. I am satisfied that ss 4.65 and 4.66 of the EPA Act apply. 6. Further, the parties agree that the proposed spray booth is properly characterised as an 'enlargement' of the existing use: s 4.67 of the EPA Act and cl 42 of the EPA Reg. I accept the agreed position of the parties. I am satisfied that there is power to grant development consent pursuant to Div 4.11 of the EPA Act and s 41(1)(a) of the EPA Act. 7. In determining the development application, I have given consideration to the objectives of the zone. 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court orders that: 1. The appeal is upheld. 2. The Development Application number 405/2022 for development described as 'the addition of a spray booth to an existing smash repair business and towing operation' at Lot 144 DP 17134 and Lot 145 DP 17134, 13-15 Newbridge Road, Chipping Norton, NSW, 2170 is determined by way of the grant of consent subject to the conditions set out in Annexure A. ………………………….. D Dickson Commissioner of the Court 22.184489 Annexure A (231975, 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: 10 November 2022