Land and Environment Court New South Wales Medium Neutral Citation: Wolf Controls Pty Ltd v Bayside Council [2023] NSWLEC 1676 Hearing dates: Conciliation Conference on 9 October 2023 Date of orders: 10 November 2023 Decision date: 10 November 2023 Jurisdiction: Class 1 Before: Targett AC Decision: The Court orders that: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Development Control Order given by the respondent to the applicant on 19 April 2023 is substituted for the Development Control Order at Annexure "A". Catchwords: DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders Legislation Cited: Bayside Local Environmental Plan 2021 Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Sch 5, Pt 1 Land and Environment Court Act 1979, ss 17, 34 Cases Cited: Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (2018) 98 NSWLR 439; [2018] NSWCA 240 Category: Principal judgment Parties: Wolf Controls Pty Ltd (First Applicant) Virtus Infrastructure Pty Ltd (Second Applicant) Bayside Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicants) P Brown (Solicitor) (Respondent) Solicitors: Piper Alderman (Applicants) HWL Ebsworth Lawyers (Respondent) File Number(s): 2023/154957 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (No. 203 dated 19 April 2023) issued by Bayside Council under s 9.34(1) and Pt 1 of Sch 5 of the EPA Act (DCO) to the first applicant, requiring land identified as Lot 2 in Strata Plan 60786, known as Unit 2, 27-29 Sir Joseph Banks Street, Botany (Site), to cease being used as a depot. 2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). Background 1. The Site is zoned MU1 Mixed Use under the Bayside Local Environmental Plan 2021 (BLEP). 2. The Site is owned by the first applicant and leased to the second applicant. 3. It was the respondent's contention that the Site was being used for the purpose of a "depot", being a prohibited use in the MU1 Mixed Use zone. 4. The respondent gave the first applicant a Notice of Intention to Give an Order on 8 March 2023 to which the first applicant did not respond. 5. The respondent issued the DCO to the first applicant on 19 April 2023 pursuant to s 9.34(1) and Pt 1 of Sch 5 of the EPA Act. 6. The applicants commenced Class 1 proceedings on 15 May 2023, being within the time period specified in s 8.18(3) of the EPA Act. 7. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 9 October 2023. I presided over the conciliation conference. 8. The agreement reached is for the DCO to be substituted with a different development control order issued to both the first and second applicant. The substituted order is largely similar to the original DCO, with the exception of it being proposed to be issued to both the first and second applicant and providing a staged and extended timeframe for compliance with the order. 9. As the second applicant was not "given" the DCO, and pursuant to s 8.18(1) of the EPA Act, only a person who is given a development control order may appeal to the Court against the order, the second applicant was required to be formally joined to the proceedings. Orders were made by the Court to this effect on 27 October 2023. Jurisdictional considerations 1. To make orders in accordance with the parties' agreement, I must be satisfied that the decision to make orders substituting the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). 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. 2. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows: (4) On hearing an appeal, the Court may— (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. 1. It is clear that the Court has power to substitute a development control order pursuant to s 8.18(4)(c) of the EPA Act. 2. I am satisfied the DCO should be substituted for a new development control order on the basis that: 1. The use of a "depot" on the Site is prohibited in the MU1 zone and there is no relevant development consent on foot permitting the second applicant's alleged use of the Site. The development control order now proposed to be substituted by the Court is therefore in accordance with s 9.34(1) and Pt 1 of Sch 5 of the EPA Act. 2. It is appropriate that the second applicant, as the occupier of the Site and the entity carrying out the "use" on the Site that was the subject of the original DCO, be given the substituted development control order (in conjunction with the first applicant). 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. The Court orders that: 1. The appeal is upheld. 2. Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Development Control Order given by the respondent to the applicant on 19 April 2023 is substituted for the Development Control Order at Annexure "A". N Targett Acting Commissioner of the Court Annexure A ********** 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 2023