Walker v Blue Mountains City Council [2022] NSWLEC 1672

Walker v Blue Mountains City Council [2022] NSWLEC 1672

Because the buildings and structures had been erected without planning approval, the premises were being used for a purpose requiring planning approval that had not been obtained, the Applicants were the owners, and s 8.18(4)(b) and (c) of the Environmental Planning and Assessment Act 1979 gave the Court power to modify and/or substitute the development control order, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. Section 34(3) of the Land and Environment Court Act 1979 therefore required the Court to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
06 December 2022
Procedural Posture
Class 1 Appeal Against a Development Control Order Under S 8.18 of the Environmental Planning and Assessment Act 1979 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties
Outcome
Appeal upheld; Development Control Order 22/131481 dated 7 June 2022 modified in accordance with the development control order contained at Annexure A.
Legal Topics
['development Control Order' 'unauthorised Works' 'demolish Works Order' 'stop Use Order' 'conciliation Conference' 'modification of Order']
['planning and Environment Law'] ['development Control Order' 'unauthorised Works' 'demolish Works Order' 'stop Use Order' 'conciliation Conference' 'modification of Order']

Case Brief

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Procedural Posture

Class 1 Appeal Against a Development Control Order Under S 8.18 of the Environmental Planning and Assessment Act 1979 / Orders Made Following a Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and modify the development control order was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the Court had power under s 8.18(4)(b) and (c) of the Environmental Planning and Assessment Act 1979 to modify and/or substitute the development control order.']

Ratio Decidendi

Because the buildings and structures had been erected without planning approval, the premises were being used for a purpose requiring planning approval that had not been obtained, the Applicants were the owners, and s 8.18(4)(b) and (c) of the Environmental Planning and Assessment Act 1979 gave the Court power to modify and/or substitute the development control order, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. Section 34(3) of the Land and Environment Court Act 1979 therefore required the Court to dispose of the proceedings in accordance with that agreement.

Court Disposition

Appeal upheld; Development Control Order 22/131481 dated 7 June 2022 modified in accordance with the development control order contained at Annexure A.

Orders

  • ['The appeal is upheld.' 'The development control order issued by the Respondent to the First and Second Applicants– being Development Control Order 22/131481 dated 7 June 2022 is pursuant to section 8.18(4)(b) & (c) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development...