Land and Environment Court New South Wales Medium Neutral Citation: Galea v Penrith City Council; Galea Group Pty Ltd v Penrith City Council [2024] NSWLEC 1064 Hearing dates: Conciliation conference on 5 February 2024 Date of orders: 21 February 2024 Decision date: 21 February 2024 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: In the matter of 2022/326112: (1) The appeal is upheld. (2) The development control order issued by the Respondent to the Applicants dated 5 October 2022 is substituted with the Order set out in Annexure A, pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979. In the matter of 2022/344776: (1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (2) The appeal is upheld. (3) Development Application No DA22/0826 for the use of the shed, including the mezzanine level and the concrete hardstand area, the use and reworking of recently placed fill material, and carrying out of stormwater drainage works and landscaping, at 430 The Driftway Londonderry, being Lot 2 in DP 1156996, is determined by the grant of consent, subject to the conditions of consent at Annexure B. Catchwords: DEVELOPMENT CONTROL ORDER AND DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7, 8.18, 9.34, Sch 5 Pt 1 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 38 Category: Principal judgment Parties: Mark Galea (First Applicant in proceedings 2022/326112) Corinne Galea (Second Applicant in proceedings 2022/326112) Galea Group Pty Ltd (Applicant in proceedings 2022/344776) Penrith City Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicants in all proceedings) C Campbell (Solicitor) (Respondent) Solicitors: Storey & Gough Lawyers (Applicants in all proceedings) Sparke Helmore Lawyers (Respondent) File Number(s): 2022/326112 2022/344776 Publication restriction: No Judgment 1. COMMISSIONER: These are two appeals, an appeal pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against a development control order issued by Penrith City Council (the Council) to the Applicants on 5 October 2022 (file number 2022/326112); and an appeal pursuant to the provisions of s 8.7(1) of the EPA Act against the refusal of Development Application No DA22/0826 for the use of the shed, including the mezzanine level and the concrete hardstand area, the reworking of recently placed fill material, and carrying out of stormwater drainage works and landscaping (the proposal) (file number 2022/344776), at 430 The Driftway Londonderry (the site), by the Council. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 February 2024. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 3. Under s 34(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. The parties' decision involves the Court exercising the functions under s 8.18 of the EPA Act to substitute the Order issued on 5 October 2022 for a new development control order; and s 4.16 of the EPA Act to grant consent to the development application. The development application is amended 1. The Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application in accordance with the documents listed below: Plan/drawing Prepared by Description Version Date GENERAL PS01-A000 Martens and Associates Pty Ltd Cover Sheet F 10.5.23 PS01-A050 Martens and Associates Pty Ltd General Overview Plan (sheet 1) C 9.5.23 PS01-A051 Martens and Associates Pty Ltd General Overview Plan (sheet 2) D 10.5.23 PS01-A052 Martens and Associates Pty Ltd Landscape Plan C 10.5.23 PS01-A300 Martens and Associates Pty Ltd Shed East Elevation and Floor Plan D 9.5.23 CONSTRUCTION MANAGEMENT WORKS PS01-B300 Martens and Associates Pty Ltd Erosion and Sediment Control Plan B 9.5.23 PS01-B310 Martens and Associates Pty Ltd Erosion and Sediment Control Details B 9.5.23 EARTHWORKS PS01-C100 Martens and Associates Pty Ltd Earthworks Plan C 10.5.23 PS01-C200 Martens and Associates Pty Ltd Grading Swale Type A Long & Typical Section B 10.5.23 PS01-C201 Martens and Associates Pty Ltd Grading Swale Type B Long & Typical Section B 10.5.23 PS01-C202 Martens and Associates Pty Ltd Grading Main Channel Long & Typical Section B 10.5.23 PS01-C203 Martens and Associates Pty Ltd Grading Swale Type A Cross Sections (21-MSD01) A 9.5.23 PS01-C204 Martens and Associates Pty Ltd Grading Swale Type B Cross Sections (21-MSD02) Sheet 1 A 9.5.23 PS01-C205 Martens and Associates Pty Ltd Grading Swale Type B Cross Sections (21-MSD02) Sheet 2 A 9.5.23 PS01-C206 Martens and Associates Pty Ltd Grading Swale Type B Cross Sections (21-MSD02) Sheet 3 A 9.5.23 PS01-C207 Martens and Associates Pty Ltd Grading Swale Type B Cross Sections (21-MSD02) Sheet 4 A 9.5.23 PS01-C208 Martens and Associates Pty Ltd Grading Main Channel Cross Sections (21-MSD03) Sheet 1 B 10.5.23 PS01-C209 Martens and Associates Pty Ltd Grading Main Channel Cross Sections (21-MSD03) Sheet 2 A 9.5.23 PS01-C500 Martens and Associates Pty Ltd Earthworks Cut-Fill Plan Design Surface to Approved Surface C 10.5.23 PS01-C510 Martens and Associates Pty Ltd Earthworks Cut Fill Plan Design Surface to Existing Surface C 10.5.23 PS01-C600 Martens and Associates Pty Ltd Earthworks Site Sections and Elevations Sheet 1 B 9.5.23 PS01-C601 Martens and Associates Pty Ltd Earthworks Site Sections and Elevations Sheet 2 C 10.5.23 PS01-C602 Martens and Associates Pty Ltd Earthworks Site Sections and Elevations Sheet 3 C 10.5.23 PS01-C603 Martens and Associates Pty Ltd Earthworks Site Sections and Elevations Sheet 4 C 10.5.23 DRAINAGE PS01-EZ00 Martens and Associates Pty Ltd Site Drainage Maintenance Plan B 10.5.23 Jurisdictional pre-requisites to the grant of consent 1. The development control order (the original Order), dated 5 October 2022, was issued by the Council pursuant to s 9.34(1)(a) and Pt 1 of Sch 5 to the EPA Act. The original Order concerned unauthorised earthworks that had occurred on the site. 2. The circumstances in which a Stop Use Order and Restore Works Order may be issued are as follows (Pt 1 of Sch 5 to EPA Act): To do what? When? 1. Stop Use Order Premises are being used— To stop using premises or a building • for a purpose for which a planning approval is required but has not been obtained Not to conduct or to stop conducting an activity on the premises 10. Restore Works Order An unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out. 1. I accept the parties' agreement that the Stop Use Order was not validly issued because the undertaking of earthworks does not constitute the use of a premises. I accept the parties' agreement that the Restore Works Order was valid as there exist sufficient circumstances to enliven the power to give the Order under item 10 of Pt 1 of Sch 5 to the EPA Act. The earthworks, which consisted of the filling of the land and the alteration of ground levels, was development that required development consent. The works which occurred in an area subject to flooding have the potential to impact on the flow of floodwater on the premises and adjoining properties. 2. The appeal against the original Order is made pursuant to s 8.18(1) of the EPA Act. On appeal, the Court may substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, pursuant to s 8.18(4)(c) of the EPA Act. 3. The original Order is substituted for the Order in Annexure A. The substituted Order is prepared in the terms of item 10 of Pt 1 of Sch 5 to the EPA Act, being a Restore Works Order. A Restore Works Order may be issued in circumstances where unauthorised works have been carried out. 4. The development application was lodged on 7 October 2022, and it was refused by the Council on 16 November 2022. The application proposes the retention of a proportion of the unauthorised earthworks and the creation of a number of drainage swales to accommodate floodwater. The application includes a Flood Impact Assessment. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 5 February 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: In the matter of 2022/326112: 1. The appeal is upheld. 2. The development control order issued by the Respondent to the Applicants dated 5 October 2022 is substituted with the Order set out in Annexure A, pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979. In the matter of 2022/344776: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The appeal is upheld. 3. Development Application No DA22/0826 for the use of the shed, including the mezzanine level and the concrete hardstand area, the use and reworking of recently placed fill material, and carrying out of stormwater drainage works and landscaping, at 430 The Driftway Londonderry, being Lot 2 in DP 1156996, is determined by the grant of consent, subject to the conditions of consent at Annexure B. Susan O'Neill Commissioner of the Court Annexure A Annexure B ********** 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: 21 February 2024