Rabbits Eat Lettuce Pty Ltd v Richmond Valley Council [2018] NSWLEC 1685

Land and Environment Court New South Wales

Medium Neutral Citation: Rabbits Eat Lettuce Pty Ltd v Richmond Valley Council [2018] NSWLEC 1685 Hearing dates: Conciliation conference on 20 December 2018 Date of orders: 24 December 2018 Decision date: 24 December 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: See addendum at [16] below Catchwords: APPEAL: development control order - removal of structures - conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Rabbits Eat Lettuce Pty Ltd (Applicant) Richmond Valley Council (Respondent) Representation: Solicitors: R Fox, Fishburn Watson O'Brien (Applicant) C Rose, Swaab Attorneys (Respondent) File Number(s): 2018/216259 Publication restriction: No

Judgment 1. This judgement concerns a Class 1 appeal in respect of a development control order issued by the Council on 2 July 2018 (the order). 2. The order was issued to a company called Rabbits Eat Lettuce Pty Ltd ( the applicant). 3. The applicant holds a development consent DA 2016/0007 for the use of land at Lots 63, 64,70 and 71 DP 755636 and Lots 1,2,3,4,5 and 6 DP 127047 – 1048 Seery Road, Kippenduff, New South Wales (site) for events and temporary structures. 4. The consent requires the removal of the structures during a 21 day bump out period. On inspection undertaken by Council on 30 April 2018 after the 21 day bump out period revealed that a number of the structures remained on site without approval. 5. To address this breach of the consent the council served on the applicant the development control order the subject of this appeal under Part 1 Order 3 of Schedule 5 of the Environmental Planning and Assessment Act (the EPA Act). 6. The order required the applicant to remove all items described in the schedule attached to the order from the property within a specified time frame. 7. The applicant did not remove the structures but instead lodged a class I appeal, within 21 days of the date of the order, seeking a revocation of the order pursuant to clause 23 of schedule 5 of the Act. 8. Section 8.18 of the Act deals with the Court's power on appeals concerning orders. It provides: 8.18 Appeals concerning orders (cf previous s 121ZK) (1) A pers on who is given a devel opment control order may appeal to the Co urt against the order. (2) However, a pers on may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a perso n using or entering premis es). (3) The appeal may be made only: (a) within 28 days after the devel opment control order is given to the pers on, or (b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the perso n. (4) On hearing an appeal, the Cou rt may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the developme nt control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development con trol order is sufficiently complied with, or (e) make such order with respect to compliance with the develop ment control order as the C ourt thinks fit, or (f) make such other order with respect to the development control order as the C ourt thinks fit. 1. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 20 December 2018. I have presided over the conciliation conference. 2. 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. The terms of the decision as agreed by the parties are as follows: 1. The appeal is upheld. 2. The Court makes the Orders set out in Annexure A in substitution of the Order pursuant to Order No.3 issued by the Council to Rabbits Eat Lettuce Pty Ltd dated 28 June 2018 1. 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 (4)(b) of the EPA Act to modify the terms of the order as set out in Annexure A to this judgment. 2. The jurisdictional prerequisites that must be satisfied before this function can be exercised have been addressed. 3. Consequently, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 4. 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. 5. The Court orders: 1. The appeal is upheld. 2. The Court makes the Orders set out in Annexure A in substitution of the Order pursuant to Order No.3 issued by the Council to Rabbits Eat Lettuce Pty Ltd dated 28 June 2018