Wolf Controls Pty Ltd v Bayside Council [2023] NSWLEC 1676

Wolf Controls Pty Ltd v Bayside Council [2023] NSWLEC 1676

The Court was satisfied that substituting the Development Control Order was a decision it could make in the proper exercise of its functions because s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 empowers substitution, the alleged depot use was prohibited in the MU1 zone with no relevant development consent on foot, and it was appropriate for the second applicant as occupier and user of the Site to be given the substituted order. Accordingly, under s 34(3) of the Land and Environment Court Act 1979 the proceedings were disposed of in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Class 1 Development Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Orders Made by Agreement
Outcome
Appeal upheld; Development Control Order substituted.
Legal Topics
['development Control Order' 'prohibited Use' 'conciliation Conference' 'substitution of Development Control Order' 'class 1 Jurisdiction']
['planning and Environment Law'] ['development Control Order' 'prohibited Use' 'conciliation Conference' 'substitution of Development Control Order' 'class 1 Jurisdiction']

Case Brief

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Procedural Posture

Class 1 Development Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Orders Made by Agreement

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement to substitute the development control order." 'Whether the substituted development control order was within the powers available on an appeal against a development control order.' 'Whether the second applicant should be joined and given the substituted development control order.']

Ratio Decidendi

The Court was satisfied that substituting the Development Control Order was a decision it could make in the proper exercise of its functions because s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 empowers substitution, the alleged depot use was prohibited in the MU1 zone with no relevant development consent on foot, and it was appropriate for the second applicant as occupier and user of the Site to be given the substituted order. Accordingly, under s 34(3) of the Land and Environment Court Act 1979 the proceedings were disposed of in accordance with the parties' agreement.

Court Disposition

Appeal upheld; Development Control Order substituted.

Orders

  • ['The appeal is upheld.' '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".']