Vigor Master Pty Ltd v Hornsby Shire Council [2020] NSWLEC 1210

Land and Environment Court New South Wales

Medium Neutral Citation: Vigor Master Pty Ltd v Hornsby Shire Council [2020] NSWLEC 1210 Hearing dates: Conciliation conference on 24 April 2020 Date of orders: 12 May 2020 Decision date: 12 May 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court Orders: (1) The appeal is upheld. (2) Upon completion of the actions numbered 1 to 9 in Annexure "A", the Development Control (Stop Work) Order dated 24 April 2019, issued by the Respondent to the Applicant, is revoked. Catchwords: DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Vigor Master Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: J Doyle (Applicant) A Pickup (Solicitor) (Respondent)

Solicitors: Vigor Master Pty Ltd (Applicant) Local Government Legal (Respondent) File Number(s): 2019/154815 Publication restriction: No

Judgment 1. COMMISSIONER: Vigor Master Pty Ltd (the Applicant) has appealed the decision of Hornsby Shire Council (the Respondent) to issue a Development Control (Stop Work) Order dated 24 April 2019, pursuant to Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and which modified an earlier Development Control (Stop Work) Order issued by the Respondent dated 2 April 2019. 2. The Development Control (Stop Work) Orders were issued in relation to building works at 392 Galston Road and 5 Middle Dural Road (also identified as Lot 1 DP654433 and Lot C DP 38865), Galston (the Subject Site). 3. The appeal comes to the Court pursuant to s 8.18 of the EP&A Act, and falls within Class 1 of the Court's jurisdiction. 4. 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 24 April 2020 by teleconference, and I have presided over the conciliation conference. 5. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant's modification application, subject to conditions. 6. 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 function under ss 8.18(e) and 8.18(f) of the EP&A Act to make orders in relation to either compliance with the development control order as the Court thinks fit, or with respect to the development control order as the Court thinks fit. 7. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. 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. 9. 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. 10. The Court orders: 1. The appeal is upheld. 2. Upon completion of the actions numbered 1 to 9 in Annexure "A", the Development Control (Stop Work) Order dated 24 April 2019, issued by the Respondent to the Applicant, is revoked.