Galea v Penrith City Council; Galea Group Pty Ltd v Penrith City Council [2024] NSWLEC 1064

Galea v Penrith City Council; Galea Group Pty Ltd v Penrith City Council [2024] NSWLEC 1064

The Court was satisfied that the parties' agreement was a decision the Court could have made in the proper exercise of its functions. The Stop Use Order was not validly issued because undertaking earthworks does not constitute the use of premises, but the Restore Works Order was valid because unauthorised earthworks, consisting of filling land and altering ground levels in an area subject to flooding, required development consent and had potential impacts on floodwater flow. The original order could therefore be substituted with the Restore Works Order in Annexure A, and Development Application No DA22/0826 could be approved subject to conditions.

Jurisdiction
Australia
Judgment Date
21 February 2024
Procedural Posture
Class 1 Appeals Against a Development Control Order and Refusal of Development Application No Da22/0826 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Both appeals upheld; the development control order was substituted with the order in Annexure A; Development Application No DA22/0826 was granted consent subject to conditions; the Applicant in proceedings 2022/344776 was ordered to pay the Respondent's costs thrown away by the amendment of the development...
Legal Topics
['development Control Order' 'development Application Refusal Appeal' 'conciliation Conference' 'unauthorised Earthworks' 'restore Works Order' 'stop Use Order' 'development Consent' 'costs Thrown Away by Amendment']
['planning and Environment Law' 'development Control' 'development Applications'] ['development Control Order' 'development Application Refusal Appeal' 'conciliation Conference' 'unauthorised Earthworks' 'restore Works Order' 'stop Use Order' 'development Consent' 'costs Thrown Away by Amendment']

Case Brief

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Procedural Posture

Class 1 Appeals Against a Development Control Order and Refusal of Development Application No Da22/0826 / Orders Following Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the parties' agreement was a decision that 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 Stop Use Order was validly issued in relation to earthworks.' 'Whether the Restore Works Order was validly issued in relation to unauthorised earthworks on the site.' 'Whether the original development control order could be substituted with the order in Annexure A under s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979.' 'Whether Development Application No DA22/0826 should be determined by the grant of consent subject to conditions.']

Ratio Decidendi

The Court was satisfied that the parties' agreement was a decision the Court could have made in the proper exercise of its functions. The Stop Use Order was not validly issued because undertaking earthworks does not constitute the use of premises, but the Restore Works Order was valid because unauthorised earthworks, consisting of filling land and altering ground levels in an area subject to flooding, required development consent and had potential impacts on floodwater flow. The original order could therefore be substituted with the Restore Works Order in Annexure A, and Development Application No DA22/0826 could be approved subject to conditions.

Court Disposition

Both appeals upheld; the development control order was substituted with the order in Annexure A; Development Application No DA22/0826 was granted consent subject to conditions; the Applicant in proceedings 2022/344776 was ordered to pay the Respondent's costs thrown away by the amendment of the development...

Orders

  • ['In the matter of 2022/326112: The appeal is upheld.' 'In the matter of 2022/326112: The development control order issued by the Respondent to the Applicants dated 5 October 2022 is substituted with the Order set out in Annexure A, pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979.' "In...