Black v Lake Macquarie City Council

Parties: Michael Black (Applicant)
Lake Macquarie City Council (Respondent)

Representation: Counsel:
M Black (Self-represented) (Applicant)
N Nadj (Solicitor) (Respondent)
Solicitors:
Bick & Steele (Respondent)

File Number(s): 2025/192797

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development control order issued by Lake Macquarie City Council on 14 April 2025 (the order). The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. The order is a stop use order, issued pursuant to Item 1 of Pt 1 of Sch 5. It requires the applicant to cease use of premises at 1524 Freemans Drive, Cooranbong, for the purpose of a depot. Item 1 in the table allows a development control order to be issued as a stop use order where premises are being used for a prohibited use. A depot is a prohibited use on the land. The applicant, Mr Black, appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which substitute the order with another stop use order, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 31 October 2025. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on 13 November 2025. The agreement is for the order to be substituted with another stop use order, allowing additional time for compliance and specifying items on the site that are excluded from the operation of the substitute order.

The power to make orders in accordance with the agreement

4. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to modify the order in the agreed terms is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). To assist me in being so satisfied, the parties have prepared an agreed Jurisdictional Statement, filed on 17 November 2025.

5. The substitute order remains an order to stop use of the site for the purpose of a depot. Item 1 of Pt 1 of Sch 5 to the EPA Act allows a development control order to be issued as a stop use order where premises are being used for a prohibited purpose. The site is zoned part C2 Environmental Conservation and part C3 Environmental Management, pursuant to the Lake Macquarie Local Environmental Plan 2014 (LMLEP), and a depot is an innominate prohibited use. The parties agree that some, but not all, of equipment and machinery that is stored at the premises is stored when not required for use in the operations of an existing undertaking, consistent with the carrying out of a use for the purposes of depot as defined by the LMLEP. Therefore, there is power to issue the order to the applicant, who is an occupier of the premises. The substitute order requires the applicant to stop use of the premises for that purpose, and remove equipment and machinery associated with that use, but allows other equipment and machinery to remain that is associated with the personal or domestic use of the premises.

6. In addition, s 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are as follows:

(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.

7. I am satisfied that the decision to make orders to modify the order in the terms agreed to by the parties is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(c) of the EPA Act gives the Court the power, on the hearing of the appeal, to substitute the order with any other order that the relevant authority could have given.

8. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make in the exercise of its functions in each of the appeal proceedings, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making order to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the issues that were originally in dispute between the parties.

Orders

10. The Court orders that:

11. The appeal is upheld.

12. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), the Development Control Order dated 14 April 2025 (ORD/296/2024), relating to the use of the premises at Lot 1 DP502590, known as 1524 Freemans Drive, Cooranbong NSW 2265 issued by the respondent to the applicant is substituted by the Development Control Order set out in Annexure A, being an order that the respondent as the relevant enforcement authority could have given.

13. The Court notes that the parties have agreed that each party will pay their own costs.

J Gray

Commissioner of the Court

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Annexure A (840 KB, pdf)