Vaccaro Developments Pty Limited v Fairfield City Council [2024] NSWLEC 1076

Land and Environment Court New South Wales

Medium Neutral Citation: Vaccaro Developments Pty Limited v Fairfield City Council [2024] NSWLEC 1076 Hearing dates: Conciliation conference on 23 February 2024 Date of orders: 27 February 2024 Decision date: 27 February 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) The Development Control Order issued by the Respondent to the Applicant on 26 July 2023 under Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act) is, pursuant to s 8.18(4)(b) of the EPA Act, modified in accordance with the Development Control Order at Annexure 'A'. Catchwords: APPEAL – development control order – stop use order – conciliation conference – agreement to modify order Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Sch 5, Pt 1 Land and Environment Court Act 1979, s 34 Fairfield Local Environmental Plan 2013 Category: Principal judgment Parties: Vaccaro Developments Pty Limited (Applicant) Fairfield City Council (Respondent) Representation: Counsel: Z Hamdan El Madi (Solicitor) (Applicant) S Shneider (Solicitor) (Respondent)

Solicitors: Addisons Lawyers (Applicant) Houston Dearn O'Connor (Respondent) File Number(s): 2023/266708 Publication restriction: Nil

Judgment 1. COMMISSIONER: This appeal concerns a development control order issued by Fairfield City Council on 26 July 2023 (the order). The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. The order is a stop use order, issued pursuant to Item 1 of Pt 1 of Sch 5. It requires the applicant to cease use of premises at 763-783 Wallgrove Road, Horsley Park, for the purpose of a transport depot. Item 1 in the table allows a development control order to be issued as a stop use order where premises are being used for a prohibited use. A transport depot is a prohibited use on the land. The applicant, Vaccaro Developments Pty Ltd, appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which modify the order, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 February 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which is contained in the signed agreement provided on 16 February 2024. The agreement is for the order to be modified to reflect that the applicant is not the occupier of the site, to allow six months from today's date for compliance, and to require the removal of a diesel bowser.