Doimo v Queanbeyan-Palerang Regional Council [2021] NSWLEC 1417

Doimo v Queanbeyan-Palerang Regional Council [2021] NSWLEC 1417

The parties' agreed decision was one the Court could have made because a development control order had been issued by Queanbeyan-Palerang Regional Council, the Council was a relevant enforcement authority with power to issue development control orders, the earthworks exceeded the Development Consent and were unauthorised works, the Applicants were owners of the Site, and a Restore Works Order was an order the Council could have given. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
23 July 2021
Procedural Posture
Class 1 Miscellaneous Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
The appeal was upheld and the development control order dated 16 February 2021 was substituted with the development control order set out at Annexure A.
Legal Topics
['stop Works Order' 'restore Works Order' 'earthworks' 'conciliation Conference' 'jurisdictional Preconditions' 'unauthorised Works']
['planning and Environment Law' 'development Control Orders'] ['stop Works Order' 'restore Works Order' 'earthworks' 'conciliation Conference' 'jurisdictional Preconditions' 'unauthorised Works']

Case Brief

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Procedural Posture

Class 1 Miscellaneous Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a Development Control Order / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision 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)(c) of the Environmental Planning and Assessment Act 1979 to substitute the stop works development control order with another order Queanbeyan-Palerang Regional Council could have given.' 'Whether the earthworks were unauthorised works and whether the preconditions for a Restore Works Order under Schedule 5, Part 1, Item 10 of the Environmental Planning and Assessment Act 1979 were satisfied.']

Ratio Decidendi

The parties' agreed decision was one the Court could have made because a development control order had been issued by Queanbeyan-Palerang Regional Council, the Council was a relevant enforcement authority with power to issue development control orders, the earthworks exceeded the Development Consent and were unauthorised works, the Applicants were owners of the Site, and a Restore Works Order was an order the Council could have given. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Court Disposition

The appeal was upheld and the development control order dated 16 February 2021 was substituted with the development control order set out at Annexure A.

Orders

  • ['The appeal is upheld.' 'Development control order dated 16 February 2021 issued by Queanbeyan-Palerang Regional Council pursuant to Part 9, Division 9.3, section 9.34 (Schedule 5, Part 1, Item 2) of the Environmental Planning and Assessment Act 1979 is substituted for the development control order set out at...