COMMISSIONER: The Applicant's appeal against a development control order (the Order) issued by Penrith City Council pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). The Order was a Demolish Works Order (Item 3) issued pursuant to Pt 1 of Sch 5 of the EPA Act. The Order requires the demolition of an unauthorised addition to an existing fruit and vegetable store at the site: 312 Third Avenue, Llandilo (Lot 2 in DP 221473).
[2]
Background
Prior to 2010 the site was subject to the provisions of the Penrith Local Environmental Plan (Rural Lands) 201 (LEP 201). Under that instrument the land was zoned 1 (a) Rural. However, cl 41 of LEP 201 provided specific provisions in relation to the land to permit the use of the site for the purposes of a fruit and vegetable store with a maximum floor area of 150m², namely:
41 Development of certain land at Llandilo
(1) This clause applies to land situated adjacent to Third Avenue, Llandilo, being Lot 2, DP 221473, shown edged heavy black on the map marked "Penrith local Environmental Plan No 201 (Rural Lands) (Amendment No 1)".
(2) For the purpose of this clause -
floor area means the whole of the area used for the display and storage of goods and merchandise within a fruit and vegetable store, but does not include an area used for the bulk storage of produce (whether in a cool room or otherwise) pending display or sale.
fruit and vegetable store means a building or place used primarily for selling or exposing for sale by retail, fruit and vegetables and, as an ancillary use only, the selling or exposing or offering for sale by retail of bread, milk, cigarettes, confectionery, soft drinks, fruit juice, flowers, potted plants only.
(3) Notwithstanding any other provision of this plan, a person may, with the consent of the council, carry out development on land to which this clause applies for the purposes of a fruit and vegetable store with a maximum floor area of 150 sqm.
(4) The council shall not grant consent to the carrying out of development as referred to in subclause (3) unless arrangements satisfactory to the council have been made with the council with regard to the supply of water and disposal of effluent.
The site also has the benefit of a development consent issued by the Respondent. That consent grants permission to occupy an existing building and a proposed extension and to permit the operation of a fruit and vegetable store on the land with a maximum floor space of 150m² (DA 168/1992). A condition of that consent was a restriction on the goods for sale, as follows:
"Goods for sale from the shop are limited to the following:
Fruit and vegetables and, as ancillary purpose only, bread, milk, cigarettes, confectionary, soft drinks, fruit juice, flowers and potted plants only."
(Exhibit 4)
In 1997 cl 41 of LEP 201 was amended to include "pasta, eggs and honey" in the definition of fruit and vegetable store. Despite the amendment of cl 41 of LEP 201, the development consent (DA168/1992) was not amended, and thus the site does not have consent to sell or display all the products enabled by LEP 201.
The 1997 amendment to cl 41 in LEP 201 also altered the definition of "floor area" to exclude any area used for bulk storage of produce (whether in a cool room or otherwise) pending sale or display. On September 2001 a modification application, to amend DA168/1992, was approved by the Respondent. The modified consent mirrored the amendment to the definition of 'floor area' in LEP 201, in effect and permitting the maximum area of the fruit and vegetable store to be 150m², excluding any cool rooms or areas of bulk storage.
In 2010 pursuant to Penrith Local Environmental Plan 2010 (LEP 2010) the land was zoned RU4 Primary Production Small lots. Shops and retail premises are prohibited uses in the RU4 Primary Production Small lots zone. However, pursuant to s 4.70 of the EPA Act the use of the land consistent with the existing development consents issued remains permitted.
The final relevant matter in relation to the proceedings is the decision of the Court of Appeal that the control in cl 41 of LEP 201, the limit on floor area to 150m² was a prohibition: Agostino v Penrith City Council [2010] NSWCA 20.
[3]
The amended orders sought
The parties tendered agreed orders in the proceedings which were marked Exhibit 1. The terms of the amended order follow. In effect the parties, by consent, seek to amend the timeframe for compliance with the Order to be 27 October 2021 and to amend the reference in the order to reflect architectural plans now available detailing the extent of the unauthorised works.
The agreed orders sought by the parties are as follows:
"1. The Appeal is upheld;
2. That Development Control Order dated 16 October 2019 is modified as follows:
'The First Applicant must demolish the unauthorised metal roofed, rendered and painted addition attached to the front of the approved shop at the premises known as 312 Third Avenue, Llandilo as shown in the attached Studio Block plans dated 2 June 2021 Drawing Nos: DN558 and shown in the attached photographs by no later than 29 October 2021 (the unauthorised addition)'
3. The First Applicant must ensure that no person shall:
(a) Erect ang signage on the unauthorised addition unless approved by the Respondent or a competent authority;
(b) Display the following items in the unauthorised addition:
- cheese,
- yoghurt,
- packaged cakes,
- pastizzis,
- Canned beans,
- Ice cream,
- Packet noodles,
- Packaged deli meats,
- Pasta sauce,
- Pasta,
- Olive oil,
- Anchovies,
- Canned tuna,
- Eggs,
- Honey.
Within fourteen (14) days after judgment and unless approved by the Respondent or competent authority; and
(c) Display any items for sale within the floor area of the unauthorised addition unless approved by the Respondent or a competent authority.
4. The stay of the Development Control Order dated 16 October 2020 referred to in Order 3 of the Short Minutes of Order made by Moore J on 18 December 2020 is revoked.
5. Each party bear their own costs."
(Exhibit 1)
The Studio Block plans dated 2 June 2021 Drawing Nos: DN558 and relevant photographs are attached at Annexure A to this judgment.
By consent the parties invite me to modify the order under s 8.18(4)(f) of the EPA Act. I accept that this provision provides the Court power to modify the orders as sought by the parties in the agreed orders at (1) through (3) at paragraph [8].
Section 8.18(4) of the EPA Act sets out the powers of the Court on appeal against an order, as follows:
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.
(2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).
(3) The appeal may be made only -
(a) within 28 days after the development control order is given to the person, or
(b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.
(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
(d) find that the development control order is sufficiently complied with, or
(e) make such order with respect to compliance with the development control order as the Court thinks fit, or
(f) make such other order with respect to the development control order as the Court thinks fit.
In hearing the appeal the Court re-exercises the functions of the Council in determining whether the Order should be issued: s 39 of the Land and Environment Court Act 1979 (LEC Act). As such, in addition to s 8.18(4)(f) of the EPA Act, I must also be satisfied that the requirements exist to make the amended development control order, in this case a Demolish Works Order.
The Respondent, Penrith City Council, issued the Order on 16 October 2019 following notice being given on 12 September 2019 to the owner of the building of the Council's intention to issue the development control order. The order was to be complied with by 30 December 2019. (Exhibit 4) By order of the Court on 18 December 2020 the order was stayed, pending further orders. The Applicant accepts, and I am satisfied, that the requirements and circumstances listed in the Table to Pt 1 of 5 for a Demolish Works Order are satisfied as detailed in the following.
For the purposes of the amended Demolish Works Order sought by the parties I am satisfied firstly that the Demolish Works order is the appropriate order given the action sought (the demolition of the unauthorised extension) and secondly that the order is appropriately issued to the owner of the building: Mr Antonio Agostino (Senior): Exhibit 1. Finally, I am required to be satisfied that the building falls into one of the following categories:
A building -
- requiring planning approval is erected without approval, or
- requiring approval under the Local Government Act 1993 is erected without approval, or
- is likely to become a danger to the public, or
- is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or
- is erected in contravention of this Act.
The Court was assisted in the proceedings by planning experts Mr Warwick Stimson, for the Applicant and Ms Lucinda Goldstein, for the Respondents. The experts joint conferenced and produced a joint expert report that was tendered in the proceedings as Exhibit 3. In that report the experts reach agreement that the addition to an existing fruit and vegetable store at the site required planning approval and was erected without such approval. In their joint report they state:
"2.2.1 The Experts agree
i. Unauthorised building works have occurred on the site in the form of an addition attached to the front of an existing fruit and vegetable store.
ii. Development consent for the unauthorised works is required pursuant to Section 4.2 of the Environmental Planning and Assessment Act 1979 (EP&A Act).
iii. The unauthorised work meets the definition of 'development' under the EP&A Act.
iv. The subject site is zoned RU4 Primary Production Small Lots pursuant to Penrith Local Environmental Plan 2010 (LEP 2010). The use of the unauthorised building could be defined as a shop, retail premise, neighbourhood shop, or neighbourhood supermarket, which are prohibited uses in the zone.
i. (sic) No development consent exists for the unauthorised building works."
(Exhibit 3)
I accept the agreed evidence of the experts. On the basis of the expert evidence and my view of the site at the commencement of the proceedings I am satisfied that the circumstances exist for the issuing of the amended order in the manner agreed by the parties.
Finally, in relation to order 4 of the agreed orders, I accept the submission of the parties, and am satisfied that, pursuant to s 36(2) of the LEC Act, it is appropriate to revoke the stay of the order granted on 18 December 2020.
For the reasons outlined, I consider it is appropriate to allow the appeal and make the modified development control order pursuant to section 8.18(4) of the EPA Act in the manner agreed by the parties.
Accordingly, the Court orders that:
1. The Appeal is upheld;
2. That Development Control Order dated 16 October 2019 is modified as follows:
'The First Applicant must demolish the unauthorised metal roofed, rendered and painted addition attached to the front of the approved shop at the premises known as 312 Third Avenue, Llandilo as shown in the attached Studio Block plans dated 2 June 2021 Drawing Nos: DN558 and shown in the attached photographs by no later than 29 October 2021 (the unauthorised addition)'
1. The First Applicant must ensure that no person shall:
(a) Erect any signage on the unauthorised addition unless approved by the Respondent or a competent authority;
(b) Display the following items in the unauthorised addition:
- cheese,
- yoghurt,
- packaged cakes,
- pastizzis,
- Canned beans,
- Ice cream,
- Packet noodles,
- Packaged deli meats,
- Pasta sauce,
- Pasta,
- Olive oil,
- Anchovies,
- Canned tuna,
- Eggs,
- Honey.
Within fourteen (14) days after judgment and unless approved by the Respondent or competent authority; and
(c) Display any items for sale within the floor area of the unauthorised addition unless approved by the Respondent or a competent authority.
1. The stay of the Development Control Order dated 16 October 2019 referred to in Order 3 of the Short Minutes of Order made by Moore J on 18 December 2020 is revoked.
2. Each party bear their own costs.
3. The Exhibits are returned with the exception of A, 1 and 2.
[4]
Commissioner of the Court
Annexure A (1361721, pdf)
[5]
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Decision last updated: 06 July 2021