Advantage Logistics Pty Ltd v Liverpool City Council

File Number(s): 2024/311997

Publication restriction: No

Judgment

1. COMMISSIONER: This is an appeal against Liverpool City Council’s (Council) Development Control Order dated 6 August 2024 (DCO) in respect of Lot 2 in Deposited Plan 858141, being land known as 1802 Elizabeth Drive, Kemps Creek (Land).

2. The proceedings have been brought pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The statutory power or function to be exercised in determining the proceedings is s 8.18(4) of the EPA Act:

8.18 Appeals concerning orders (cf previous s 121ZK)

(1) A person who is given a development control order may appeal to the Court against the order.

…

(3) The appeal may be made only—

(a) within 28 days after the development control order is given to the person, or

...

(4) On hearing an appeal, the Court may—

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

...

(f) make such other order with respect to the development control order as the Court thinks fit.

5. The DCO was issued pursuant to s 9.34(1)(a) and Pt 1 of Sch 5 of the EPA Act in terms of Item 1 – Stop Use Order. The DCO was served upon the owners of the premises located at 1802 Elizabeth Drive, Kemps Creek (Premises).

6. On the Land there is one double-storey residential dwelling, multiple trucks, trailers, motor vehicles, excavators, shipping containers, tools and machinery. The DCO concerned a use of the Premises for the storage of trucks and trailers, being categorised as a ‘transport depot’, and for the storage of other goods, being categorised as a ‘storage premises’.

Figure 1 Aerial image of the Site (Source Nearmap Date 29 August 2024) from Council’s Statement of Facts and Contentions filed 8 November 2024.

7. The Land is zoned RU4 Primary Production Small Lots pursuant to cl 2.3 of the Liverpool Local Environmental Plan 2008 (LLEP 2008).

Zone RU4 Primary Production Small Lots

1 Objectives of zone

• To enable sustainable primary industry and other compatible land uses.

• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

2 Permitted without consent

Extensive agriculture; Home-based child care; Home occupations

3 Permitted with consent

Agriculture; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Building identification signs; Business identification signs; Cemeteries; Community facilities; Crematoria; Dual occupancies; Dwelling houses; Entertainment facilities; Environmental facilities; Environmental protection works; Farm buildings; Farm stay accommodation; Flood mitigation works; Helipads; Home businesses; Home industries; Landscaping material supplies; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers’ dwellings; Secondary dwellings; Veterinary hospitals; Water recreation structures

4 Prohibited

Any development not specified in item 2 or 3

8. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 27 March 2024 and a s 34 Agreement was filed on 11 April 2025. I presided over the conciliation conference.

9. 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 the parties agreeing upon a substituted DCO pursuant to s 8.18(4)(c) and (f) of the EPA Act.

10. 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 s 8.18(4)(c) and (f) of the EPA Act to uphold the appeal and issue a substituted DCO Order. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out above and below, and the parties explained how the jurisdictional prerequisites have been satisfied.

11. The parties agree that the DCO was validly issued, and that the Applicant was afforded procedural fairness with the rules of natural justice being observed as required by Pt 7 of Sch 5 of the EPA Act:

12. On 22 March 2024 Council received complaint associated with a trucking business being operated on and from the Land with large trucks stored on the Land together with landfill.

13. On 4 April 2024 Council officers inspected the Land and noted that the Premises were being used for the purposes of a transport depot, for parking and servicing of trucks and storage premises, all of which uses were prohibited under the RU4 Primary Production Small Lots zoning in LLEP 2008.

14. On 19 July 2024 Council issued a Notice of Proposed DCO upon the Applicant. The Notice provided an opportunity for representations to be made within 14 days.

15. On 6 August 2024 Council issued the DCO with the period of compliance to be sixty (60) days from the date of the DCO.

16. On 23 August 2024 the Applicant filed the Class 1 appeal, in compliance with s 8.18(3)(a) of the EPA Act.

17. During the conciliation conference, the parties agreed to a substituted order under s 8.18(4)(c) and (f) of the EPA Act in terms of items 1 and 3 of Pt 1, Sch 5 to the EPA Act, being a Stop Works Order and a Demolish Works Order as set out in Annexure A.

18. As set out above, 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.

19. 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.

20. The Court orders:

21. The appeal is upheld.

22. A Development Control Order issued by the Respondent on 6 August 2024 in respect of Lot 2 in Deposited Plan 858141 on the land known as 1802 Elizabeth Drive, Kemps Creek dated 6 August 2024 is substituted with the Development Control Order in Annexure A pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979.

M Peatman

Acting Commissioner of the Court

Annexure A (325840, pdf)

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