Chinese Australian Services Society Ltd v Canterbury-Bankstown Council

File Number(s): 2025/95549

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Development Control Order issued by the Respondent on 12 February 2025 under s 9.34 and Pt 1 of Sch 5 of the EPA Act (the DCO) to the Applicant, requiring the Applicant to stop the use of 253 Cooper Road, Yagoona (the site) for the purposes of a boarding house.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

Background

3. The site is zoned R4 High Density Residential Zone under the Canterbury- Bankstown Local Environmental Plan 2023 (the LEP). The parties advise that the existing development consents are for the use of the site as a nursing home.

4. The parties advise that the Applicant is the registered proprietor of part of the site. CASS Care Limited is also part owner of the site and owners’ consent has been obtained in the Class 1 Application for this matter.

5. On 7 April 2024, the Applicant lodged Development Application DA-365/2025 (the DA) for the change of use of an existing building from a residential care facility to seniors housing (hostel), community facility, ancillary offices and associated works for BCA compliance. A Class 1 Application for this matter has been concluded, and development consent has been issued by the Court (2025/210580 refers).

History of the Development Control Order

6. The parties provided the following history of the DCO:

7. On 19 January 2025, the Respondent issued a Notice of Intent to give the DCO, being a stop use order for the use of the site as a boarding house;

8. On 12 February 2025, the Respondent issued the DCO pursuant to s 9.34 and Item 1 “Stop Use Order” in Pt 1 of Sch 5 of the EPA Act;

9. The DCO as issued to the Applicant was in the following terms:

“1. With Respect to Order 1, cease using or permitting the use of 253 Cooper Road Yagoona for the purposes of a boarding house.

2. Notify Council once the works are complete.”

4. The Applicant commenced Class 1 proceedings on 11 March 2025 in respect of the DCO, being within the time period specified in s 8.18(3) of the EPA Act (DCO proceedings).

Associated Development Application

7. On 2 June 2025, the Applicant commenced Class 1 proceedings against Council’s deemed refusal of the DA (DA proceedings). On 22 October 2025, the Applicant filed a Notice of Motion to amend the DA. The parties have reached agreement in those proceedings, including agreed conditions of consent. The DA has been further amended by the Applicant and approved by the Respondent in the s 34 agreement reached by the parties for the proposed development.

8. The DCO proceedings and the DA proceedings were listed by the Court concurrently. The resolution of the DCO proceedings depends on the granting of development consent to the proposed development of the site pursuant to the DA (2025/210580 refers). The proposed DCO will require the proposed development on the site to comply with Condition 72 of the conditions of consent in the development consent approved by the Court.

9. Development consent for the proposed development of the site was granted by the Court on 26 February 2026.

The Conciliation Conference

10. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 28 July 2025. The s 34 conciliation conference was terminated on 18 August 2025. The parties had made progress on resolving the contentions but were unable to reach agreement. The matter was listed for hearing by the Court on 9 and 10 December 2025.

The Hearing

11. The on-site view on 9 December 2025 was vacated at the request of the parties, who advised the Court that no submitters wished to attend an on-site view or make verbal submissions. The parties reached a s 34 agreement on terms of a modified DCO which was filed with the Court on 8 December 2025. The modified DCO is in the following terms:

“1. With respect to Order 1, cease using or permitting the use of 253 Cooper Road Yagoona for the purposes of office premises.

2. With respect to Order 11, comply with Condition 72 of the conditions of consent for development consent DA-365/2025.”

12. The hearing was adjourned and the matter proceeded as a joint s 34 conciliation conference with the Class 1 proceedings.

The s 34 Agreement

13. The s 34 agreement filed with the Court by the parties will have the effect of modifying the DCO in the terms extracted from the modified DCO at [11].

14. The s 34 agreement is supported by an agreed jurisdictional note.

15. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

16. In this matter the Court re-exercises the functions of the Council in determining whether the modified DCO as agreed by the parties should be issued pursuant to ss 39(2) and (3) of the LEC Act.

17. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

18. The parties advise that owner’s consent from the Chinese Australian Services Society Limited and CASS Care Limited was provided in the Class 1 Application.

Appeals concerning orders

19. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, 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.

20. The parties submit, and I agree, that the Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

21. The parties advise that in relation to the DCO already issued:

22. The DCO was issued pursuant to s 9.34 and Item 1 in Pt 1 of Sch 5 to the EPA Act. Column 1 of Item 1 provides that the recipient of an order can be required “to stop using premises or a building”. Column 2 of Item 1 provides that such an order can be issued in circumstances where relevantly “premises are being used for a purpose for which a planning approval is required but has not been obtained”. Column 3 of Item 1 provides that such an order can be issued to relevantly the “owner of premises or building”; and

23. The requirements of Item 1 of Pt 1 of Sch 5 to the EPA Act are therefore met and there was power for the DCO to be issued pursuant to s 9.34 of the EPA Act.

24. The parties further advise that in relation to the modified DCO to be issued:

25. The modified DCO will be issued pursuant to s 9.34 and Item 11 in Pt 1 of Sch 5 to the EPA Act. Column 1 of Item 11 provides that the recipient of an order can be required “to comply with a planning approval for the carrying out of works”. Column 2 of Item 11 provides that such an order can be issued in circumstances where relevantly “a planning approval has not been complied with.”. The Applicant did not comply with the existing development consents and therefore this requirement is met. Column 3 of Item 1 provides that such an order can be issued to relevantly the “owner of the premises”; and

26. The requirements of Item 11 of Pt 1 of Sch 5 to the EPA Act are met and there is power for the modified DCO to be issued pursuant to s 9.34 of the EPA Act.

Conclusion

23. The parties advise that the Court can be satisfied that the DCO should be substituted for the modified DCO on the basis that:

24. There was power to issue the DCO, and power remains to issue the Modified DCO relying on s 9.34 and Item 11 of Pt 1 of Sch 5 to the EPA Act in respect of the use of the site; and

25. The Court has a broad power to modify a development control order pursuant to s 8.18 of the EPA Act; and

26. The appeal was lodged within 28 days after the DCO was given to the Applicant, in accordance with s 8.18(3)(a) of the EPA Act.

27. Having considered the advice of the parties provided above at [18]-[23], 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.

28. 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.

Orders

26. The Court orders that:

27. The appeal is upheld.

28. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), the Development Control Order issued by the Respondent on 12 February 2025 to the Applicant is modified in the terms set out in the Modified Development Control Order at Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A (371 KB, pdf)

**********