Decorte v Mid-Coast Council

Catchwords: APPEAL — development application for water storage facilities — conciliation conference — agreement reached — orders made
APPEAL — development control order — agreement for works to be carried out — powers of the Court — appropriate orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.18, 9.34, Sch 5 Pt 1
Land and Environment Court Act 1979 (NSW), ss 34, 39
Environmental Planning and Assessment Regulation 2021, ss 23, 37, 38
Great Lakes Local Environmental Plan 2014, cll 5.21, 7.5, 7.7
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3, ss 3.6, 3.7, 3.8
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited: Akbari v Wollongong City Council [2022] NSWLEC 1483
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Natalie Decorte (Applicant)
Mid-Coast Council (Respondent)

Representation: Counsel:
A Hannam (Applicant)
A Jucha (Respondent)
Solicitors:
Clear Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/012848; 2024/351558

Publication restriction: No

Judgment

1. COMMISSIONER: Adjacent to the Myall River, at 1079 Upper Myall Road, Warranulla, Ms Decorte owns land that straddles both sides of Upper Myall Road. The Mid-Coast Council (the Council) alleges that in around 2023, an existing dam on the land was modified (dam 1) and two new dams were constructed (dams 2 and 3). Two appeals come before the Court concerning the three dams.

2. The first appeal, proceedings 2024/12848, concerns a development control order issued on 15 December 2023 (the order appeal). The order contains three Restore Works Orders, one with respect to each dam, requiring Ms Decorte to restore the land to the condition that it was in before unauthorised works occurred (the RW Order). Ms Decorte appeals against the RW Order, pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The second appeal, proceedings 2024/351558, concerns a development application for use of, and works to, the three dams (development appeal). The development application was refused by the Council on 19 September 2024. Ms Decorte appeals against that decision, pursuant to s 8.7 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in the development appeal, set out below at [62], are made as a result of an agreement between the parties that was reached at a conciliation conference.

The conciliated outcome in the development appeal

4. Following an adjournment of the hearing in the two appeals, the Court arranged a conciliation conference in the development appeal proceedings (2024/351558), under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 3 February 2026. I presided over the conciliation conference.

5. At 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 the same date, and follows the Council’s approval of an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amended development application includes some additional information concerning engineering and geotechnical details for the construction works.

6. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the reasons why the parties consider that their agreement is a decision that the Court could have made in the proper exercise of its functions. The Jurisdictional Statement was further updated and provided by email on 13 March 2026. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 2. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

8. The development is for the purpose of water storage facilities, which are a type of water supply system, which is a nominated permissible use in the RU2 Rural Landscape zone in which the site is located, pursuant to the Great Lakes Local Environmental Plan 2014 (GLLEP).

9. Clause 5.21 of the GLLEP, concerning flood planning, applies to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). A joint expert report of the civil and geotechnical engineers was prepared and filed on 18 December 2025 (the engineering joint report), and addresses the requirements for cl 5.21. Based on the contents of that joint report, I have considered the matters in cl 5.21(3) of the GLLEP and I am satisfied of the matters in cl 5.21(2).

10. Clause 7.5 of the GLLEP concerns stormwater management, and applies to the proposed development. Based on the Jurisdictional Statement and the engineering joint report, I am satisfied of the matters in cl 7.5(2).

11. Clause 7.7 of the GLLEP concerns riparian land and applies to the proposed development. Based on the location of the dams, the engineering joint report, and the assessment in the Council’s assessment report dated 19 September 2024, I have considered the matters in cl 7.7(3) and I am satisfied that the development is designed and sited to avoid any significant adverse environmental impact.

12. Chapter 3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) concerns koala habitat protection and applies to the site. Based on the ecological advice prepared by MJD Environmental and dated 5 March 2026, I have considered whether the site is potential koala habitat pursuant to s 3.6 of the SEPP BC, and whether the site is core koala habitat pursuant to s 3.7(1). As I am satisfied that the site is not core koala habitat, compliance with s 3.8 of the SEPP BC is not required and consent can be granted.

13. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the history of the site, outlined in the Statement of Environmental Effects dated March 2024, it is unlikely to be contaminated.

14. The proposed development includes works within Myall Road, outside the site. The entry, by the Council, into an agreement for the grant of development consent is sufficient to satisfy me that it gives landowner’s consent to the development application, in accordance with the requirements of s 23 of the EPA Regulation 2021.

15. The development application was notified between 23 August and 27 September 2024, and again between 3 and 7 October 2025 following an amendment. Two submissions were received during the first notification period, and one was received in the second notification period. I have considered the issues raised in those submissions.

16. Having reached the state of satisfaction that the decision in the development appeal is one that the Court could have made in the exercise of its functions, 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)).

17. In making the orders to give effect to the agreement between the parties in the development appeal, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. I therefore make orders below for the grant of development consent, which is hereinafter referred to as the development consent.

The order appeal

10. Although both parties agree that the works the subject of the development consent should be carried out, they have different positions on the appropriate outcome for the order appeal. Ms Decorte also argues that the RW Order was issued beyond power, and is therefore invalid.

11. At the hearing on 3 February 2026, there were three possible outcomes before the Court. The first was that which was sought by Ms Decorte, who sought that the RW Order be revoked, and that the Court make orders to compel the carrying out of the works the subject of the development consent.

12. The second was that which was sought by the Council, for the RW Order to be modified to require the carrying out of the works the subject of the development consent.

13. The third, at the suggestion of the Court, was then advanced by the Council, for the substitution of the RW Order with a Compliance Order.

14. For the reasons that are expressed below, I am not persuaded that any of those three outcomes are within the power of the Court. Having reached that conclusion, I relisted the matter before the Court on 20 March 2026 to invite the parties to put other alternative outcomes before the Court. On that second occasion, Ms Decorte sought the revocation of the RW Order simpliciter, whereas the Council sought orders with respect to the RW Order. This is discussed further below.

Power of the Court on appeal

15. In hearing an appeal against a development control order, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39(2) of the LEC Act gives the Court “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal”.

16. The Court therefore exercises the power pursuant to s 9.34(1) of the EPA Act, which provides that orders can be issued in accordance with the table to Part 1 of Schedule 5 to the EPA Act.

17. In addition, s 8.18(4) confers power on the Court on an appeal against a development control order. Section 8.18(4) provides:

(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.

18. Although both s 9.34(1) and s 8.18(4) confers discretion on the Court, the Court’s power on appeal is nevertheless constrained by the text of those provisions.

The three dams

19. The three dams were not constructed pursuant to a development consent and the parties agree that they are not exempt development. The marked up aerial photograph attached to the RW Order is in Figure 1, which shows the location of each dam.

20. Ms Decorte relies on the evidence of her husband, Mr Gazecki, that both dams 1 and dams 2 were already in existence at the time of her purchase of the property in October 2021.

21. In May and June 2022, works were carried out to dams 1 and 2. This included building up dam walls for each dam, and deepening and extending dam 1. In May 2023, further works were carried out to dam 1 to fix a failed weir and widen an easement track. Dam 3 was constructed in June 2023.

22. Ms Decorte accepts that the works carried out to Dams 1 and 2 and the construction of Dam 3 were unlawful, in that they required development consent, and such consent was not obtained.

23. Since these works, there have been multiple failures of the dams, including damage to the road and associated infrastructure into which Dam 1 encroaches.

The applicant’s position

24. Ms Decorte argues that the issue of the RW Order was beyond power, and is invalid or ought to be revoked on that basis. Two reasons were advanced as to why the RW Order is beyond power.

25. The first is that the RW Order requires works to restore the land to its former state prior to the existence of the dams, whereas there is evidence that dams 1 and 2 were in place prior to her purchase of the land. The applicant submits that this means that the RW Order goes beyond restoring the land to the condition that it was in before the unauthorised works were carried out on her behalf.

26. The second reason advanced by Ms Decorte as to why the RW Order is beyond power, is that the RW Order does not identify the unauthorised works that have been carried out. The RW Order identifies the Council as being in possession of evidence that three dams have been constructed on the land in breach of the EPA Act, but, given that the works carried out on behalf of the applicant with respect to dams 1 and 2 were not the construction of those dams, the applicant submits that the RW Order fails to sufficiently identify or describe the unauthorised works carried out by her.

27. Ms Decorte therefore submits that the Council did not comply with the requirements of s 9.34(1) of the EPA Act, which is fundamental to the issue of the RW Order. She therefore argues that the Court ought to either find that the RW Order with respect to dams 1 and 2 are a nullity or exercise its discretion under s 8.18(4)(a) to revoke the RW Order with respect to those dams.

28. Further, the applicant submits that it is appropriate to revoke the RW Order in circumstances where the development consent will compel her to carry out the works required by the consent. She points out that the Council will retain the power to issue a development control order if those works are not carried out within the time specified by the conditions of consent. The applicant submits that there has been a history of the Council’s officers repeatedly taking enforcement action, including the commencement of contempt of court proceedings, and that it would therefore be appropriate for the RW Order to be revoked.

29. Ms Decorte submits that the preferred course would be for the Court to make orders against her personally for the carrying out of the works the subject of the development consent, so that any enforcement action concerning those orders would be managed through the court process. It is submitted, on her behalf, that such orders would be within the scope of s 8.18(4)(f) of the EPA Act, as they fall within “such other order with respect to the development control order as the Court thinks fit”.

30. Further, Ms Decorte submits that the RW Order cannot be substituted for another order. She says that, to enliven the power to make such other substituted order, the original order must be one that the authority “could have given”. On the basis of her submissions, Ms Decorte’s position is that the RW Order is not one that could have been given, such that the power to substitute the RW Order with another order is not enlivened.

31. Finally, Ms Decorte submits that a Compliance order cannot be given in the circumstances. A Compliance order can only be given where “a planning approval has not been complied with” or a “Building has been unlawfully erected and does not comply with relevant development standards”, in accordance with Sch 5 Pt 1 of the EPA Act. In circumstances where the development consent will be granted imminently and only minutes before the outcome of the order appeal, the applicant submits that the planning approval could not be said to have “not been complied with” until she has been given an opportunity to comply with it. Further, Ms Decorte says that the dams do not meet the definition of a “building”, and that this is not a circumstance in which there are “relevant development standards” with which the building does not comply.

The Council’s position

32. The Council’s primary position is that the RW Order should be modified, to require the carrying out of the works the subject of the development consent. The works are required to protect the dams from further collapse, particularly where dam 1 has had a history of collapse and intrudes into the road reserve. The Council relies on the decision of the Court in Akbari v Wollongong City Council [2022] NSWLEC 1483, where the Court exercised its power under s 8.18(4)(c) to modify a restore works order to require that the land be put to a condition that was improved from before the unauthorised works were carried out.

33. In response to a suggestion advanced by the Court, the Council also advanced a secondary position that the RW Order could be substituted with a Compliance order. A Compliance order can be issued where “a planning approval has not been complied with”. Upon the granting of the development consent, the applicant intends to use the dams, and to use the dams she is required to carry out the works the subject of the development consent. Until such time as those works are complete, the planning approval has “not been complied with” which meets the requirement for the issue of a Compliance order. Therefore, pursuant to s 8.18(4)(c), the RW Order could be substituted with a Compliance order to carry out the works the subject of the development consent.

34. In opposing the applicant’s position, the Council submits that it is beyond the Court’s power, on the appeal, to make orders for the carrying out of the works, as this is not an order “with respect to the development control order”. The Council also submits that, even if was within the Court’s power, it would not be appropriate in the circumstances. Whereas a development control order runs with the land, court orders would be enforceable personally against the applicant and would not bind a subsequent landowner. This would put the Council in the position of enforcing the orders through contempt of court proceedings. The Council considers that the more appropriate course is for there to be a development control order compelling the carrying out of the works, so that the other avenues available to it under the EPA Act can be utilised if required.

Statutory basis for the issue of a Restore works order is satisfied

35. Contrary to the position advanced on behalf of Ms Decorte, the statutory basis for the issue of a Restore works order is met, and none of the issues identified by her render the RW Order a nullity for the purpose of the appeal or warrant its revocation.

36. A Restore works order can be issued to “the owner of the premises”, when “unauthorised works have been carried out”. The ambit of the order is “to restore premises to the condition in which there were before unlawful building or other works occurred”. This is taken from Item 10 of Sch 5 Pt 1 of the EPA Act, which is quoted below:

| To do what? | When? | To whom? | | Restore Works Order To restore premises to the condition in which they were before unlawful building or other works occurred | An unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out. | • The owner of the premises • Any person entitled to act on a planning approval or acting in contravention of a planning approval • In relation to work unlawfully carried out that was the deposit of material in a public place, the person responsible for unlawfully depositing material in a public place |

37. Each of these elements for the issue of a restore works order is met.

38. Firstly, it is agreed that unauthorised works have been carried out. By her own admission, the applicant accepts that the works carried out to dams 1 and 2 were unlawful works as they were carried out without development consent in circumstances where development consent was required. Similarly, the applicant acknowledges that the construction of dam 3 was unlawful on the same basis.

39. Further, the very construction of dams 1 and 2, which predated the applicant’s purchase of the property, is not supported by an existing development consent and no other basis has been advanced by the applicant to support them being lawfully in place prior to the carrying out of the works that precipitated the issue of the RW Order.

40. Secondly, a restore works order can be issued to the owner of the premises, Ms Decorte, regardless of who carried out the unauthorised works or when they were carried out. An owner of the premises can be issued with an order even if the unauthorised works predated their ownership of the premises. Accordingly, in circumstances where there is no evidence of their lawful construction, it is irrelevant that dams 1 and 2 were in existence in some form at the time of Ms Decorte’s purchase of the property.

41. Thirdly, the requirements in the RW Order to restore the land to its former state prior to the existence of the dams is consistent with Item 10 of Sch 5 to the EPA Act. The RW Order requires the land to be restored to the condition in which they were “before unlawful building or other works occurred”. There being no evidence that dams 1 and 2 were lawfully in place at any stage, the unlawful works included both their construction and the continuation of works on them following Ms Decorte’s purchase of the property.

42. Fourthly, for those reasons, the RW Order need not particularise the unlawful works carried out by, or on behalf of, Ms Decorte. I find that it adequately describes the unlawful works as “three dams have been constructed on the Premises in breach of the Act”. It also provides adequate reasons for why the Council has exercised its discretion to issue the RW Order with respect to each dam, those reasons going beyond the mere satisfaction of the statutory requirements under s 9.34 and Sch 5 Pt 1 of the EPA Act.

43. I am therefore satisfied that the statutory basis for the issue of the RW Order by the Council is met, and that the RW order is in terms consistent with Item 10 of Sch 5 Pt 1 of the EPA Act.

None of the outcomes initially before the Court are within power

44. For the following reasons, I find that none of the outcomes before the Court at the hearing of the order appeal are within the Court’s power on an appeal against an order.

45. The first outcome, sought by the applicant, is that I revoke the order and make orders requiring the carrying out of the works the subject of the development consent and its conditions. However, I am not persuaded that court orders for the carrying out of works are within the scope of the power in s 8.18(4)(f). Such orders compel the person bound by them to take certain steps, creating a legal obligation by a judgment in personam, and do not meet the description of being an order “with respect to the development control order”.

46. The second possible outcome, sought by the Council, was that the RW Order be modified to require the carrying out of the works the subject of the development consent. Although the Court has the power, pursuant to s 8.18(4)(b) of the EPA Act, to modify the development control order the subject of the appeal, the modified development control order must nevertheless be consistent with the relevant item in Sch 5 Pt 1 of the EPA Act. Section 8.18(4)(b) does not expand the Court’s power beyond the scope of the statutory function in s 9.34(1)(a) to issue orders in accordance with Sch 5 Pt 1 of the EPA Act. If a restore works order is modified by the Court pursuant to s 8.18(4)(b), the modified order must be one that is in accordance with Item 10 of Sch 5 of Pt 1.

47. At the hearing, I expressed my view that the modified order sought by the Council was outside the scope of a restore works order as set out in Item 10 of Sch 5 of Pt 1 of the EPA Act. Although the decision in Akbari v Wollongong City Council is relied upon by the Council, the circumstances in that matter are readily distinguishable from the present. In that matter, the applicant had removed, by infilling, a culvert for the drainage of water that ran alongside a road. The new restore works order, as agreed upon by the parties in those proceedings, required works to install an inlet pit in the location where the culvert was filled in, and a stormwater drain on the driveway. The extent to which the agreed order went beyond restoring the premises “to the condition in which they were before unlawful… works occurred” was simply that, rather than requiring the re-digging of the culvert, a design was agreed upon for the pit and drain. That is, the new restore works order in Akbari was to set standards for the construction of the replacement drainage system that had been removed, and that was the extent to which it required something beyond restoring the premises to the condition that they were in before the unlawful works occurred. In this matter, however, there is no evidence that any of the three dams were lawfully present on the site, so an order to carry out the works the subject of the development consent could not, in any way, meet the description of being an order to restore the premises “to the condition in which they were before unlawful… works occurred”. In my view, therefore, the modification sought by the Council is beyond the scope of a restore works order and to modify the RW Order in that manner would be outside the Court’s power under s 8.18(4)(b) of the EPA Act.

48. The third potential outcome on the order appeal was a suggestion that I made, for the substitution of the order with a Compliance Order. Such an order is a general order in accordance with Item 11 of Sch 5 Pt 1 of the EPA Act, and can be issued when “a planning approval has not been complied with”. However, on further consideration, in circumstances where the development consent requires works to be carried out in a certain timeframe, the planning approval could not be said to have “not been complied with” within the meaning in Item 11 until that timeframe has passed. Therefore, although it is open for the Court to substitute the order with another order pursuant to s 8.18(4)(c) of the EPA Act, a Compliance Order does not appear to be available at present.

The parties’ positions on the further re-listing of the order appeal

49. Having reached the unenviable (and unusual) view that none of the three outcomes before the Court at the hearing are within the scope of the Court’s power pursuant to ss 8.18 and 9.34 of the EPA Act, the order appeal was relisted to hear further from the parties concerning the appropriate outcome. Ahead of that listing, the parties were informed that the Court was not satisfied that any of the outcomes before the Court at the hearing were within power, and that the Court would invite other alternative outcomes for the disposition of the order appeal.

50. On the re-listing of the order appeal, Ms Decorte sought an order for the revocation of the RW Order. With the grant of development consent imminent, Ms Decorte points out that she is under an obligation to carry out the works the subject of the development consent, and it remains open for the Council to issue a Compliance order (or some other order) in future if required. It was submitted on her behalf that the unlawfulness that gave rise to the issue of the RW Order has now been cured through a long process of obtaining development consent, and the Council has a full suite of enforcement action available to it under the EPA Act if required.

51. Further, it was submitted on behalf of Ms Decorte that it may not be appropriate for there to be both a development control order and a development consent in place, particularly where the development control order will predate the consent, as each will compel the carrying out of works that are inconsistent with one another.

52. On the other hand, the Council’s alternative position is that orders be made to stay the RW Order over two stages – firstly, for a period of 9 months with respect to Dam 1, and secondly, for a period of 12 months with respect to Dams 2 and 3. The period of time is dated from the date of the grant of development consent. Further, the orders proposed by the Council include the revocation of the RW Order for each dam on compliance with condition 22 of the development consent. The proposed orders include liberty to apply to vary the period of the stay.

53. The Council submits that such orders are within the power of the Court to make “such other order with respect to the development control order as the Court thinks fit” pursuant to s 8.18(4)(f), and are appropriate in circumstances where the history of the unauthorised works and their consequences are such that the revocation of the RW Order is not warranted. The precise orders sought by the Council are as follows:

54. Stay the development control order no. 10 – Restore Works Order issued by the Council on 15 December 2023 with respect to Dam 1 for a period of 9 months from the date of grant of DA2024/0620.

55. Stay the development control orders no. 10 – Restore Works Orders issued by the Council on 15 December 2025 with respect to Dams 2 and 3 for a period of 12 months from the date of grant of DA2024/0620.

56. The Applicant has liberty, to be exercised by way of notice of motion with a supporting affidavit, to apply to vary the period of the stay granted by orders (1) and/or (2).

57. The development control order no. 10 – Restore Works Order issued by the Council on 15 December 2023 with respect to Dam 1 is revoked in the event that the Applicant provides the engineering certification for that dam to Council in accordance with condition 22 of DA2024/0620 within 9 months of the date of grant of consent.

58. The development control orders no. 10 – Restore Works Orders issued by the Council on 15 December 2023 with respect to Dams 2 and 3 are revoked in the event that the Applicant provides the engineering certification for that dam to Council in accordance with condition 22 of DA2024/0620 within 12 months of the date of grant of consent.

59. The applicant, through her counsel, also expressed that these orders were not opposed in the event that I am not persuaded to revoke the RW Order.

The appropriate outcome

55. Given the history of unlawful works and the potential for further dam failures if the dams remain in their current state, I accept the Council’s position that it is not appropriate to revoke the RW Order.

56. On the grant of development consent, if the applicant wants to use the dams, she will be legally obligated to comply with the consent within the time given by the conditions. That is 9 months for Dam 1, and 12 months for Dams 2 and 3.

57. If the applicant decides not to use the dams, then the RW Order is appropriate, requiring her to take steps to create a landform plan and restore the land back to the way it was prior to the unauthorised works being carried out.

58. In that context, I accept that the appropriate way forward is an order “with respect to the development control order” that stays its operation for a period of time to allow the works the subject of the development consent to be carried out, and is self-executing in revoking the RW Order once condition 22 of the development is complied with. Condition 22 requires a certificate from a professional civil and geotechnical engineer(s) to be obtained and provided to Council that certifies that all works have been undertaken in accordance with the relevant standards, approved plans and engineering details.

59. An order granting liberty to apply is also appropriate, as it allows Ms Decorte to apply to the Court to extend the period for the stay if there is some justifiable basis for doing so. The RW Order will then only become operative if the development consent is not complied with in the time period in the consent conditions, and if no action is taken to extend the stay.

60. In the order appeal, I therefore make orders in similar terms to those sought by the Council, with some variations to insert a new date into the RW Order in the event that the stay expires, and to remove the time period for the compliance with condition 22.

The final orders

Proceedings 2024/351558

61. The Court notes that the Respondent has agreed, pursuant to s 38(2) of the Environmental Planning and Assessment Regulation 2021, to the Applicant’s amendment of Development Application DA2024/0620 in accordance with the following plans and documents:

(a) Engineering plans prepared by ADW Johnson (Plan numbers 190949(1) – CENG – 001 - 190949(1) – CENG - 011 revision C, 1 February 2026). (b) Report on Geotechnical Investigation – Rural Dam Assessment – 1079, Stratum Consulting Engineers (SE26.021-01.R01.3, 16 December 2025). (c) Upper Myall Road, Warranulla – Amended DA Technical Memorandum, ADW Johnson (revision B, 16 December 2025).

62. The Court orders that:

63. The appeal is upheld.

64. Development consent is granted to Development Application DA2024/0620 for the continuing use of and works to three dams on Lot 27 DP 753163, known as 1079 Upper Myall Road, Warranulla NSW subject to the conditions of consent at Annexure A.

Proceedings 2024/012848

63. The Court orders that:

64. The appeal is upheld.

65. The development control order no. 10 – Restore Works Order issued by the respondent on 15 December 2023 is stayed with respect to Dam 1 for a period of 9 months from today’s date.

66. The development control order no. 10 – Restore Works Order issued by the respondent on 15 December 2023 is stayed with respect to Dams 2 and 3 for a period of 12 months from today’s date.

67. On the expiry of the period in orders (2) and (3), the date contained in paragraph one of the Directions with respect to each dam in the development control order issued on 15 December 2023 is extended to 28 days after the date on which the stay expires for the applicable dam.

68. The applicant has liberty, to be exercised by way of notice of motion with a supporting affidavit, to apply to vary the period of the stay granted by orders (2) and/or (3) and the date in order (4).

69. The development control order no. 10 – Restore Works Order issued by the respondent on 15 December 2023 with respect to Dam 1 is revoked in the event that the applicant provides the engineering certification for that dam to the respondent in accordance with condition 22 of DA2024/0620.

70. The development control order no. 10 – Restore Works Orders issued by the respondent on 15 December 2023 with respect to Dams 2 and 3 is revoked in the event that the applicant provides the engineering certification for those dams to the respondent in accordance with condition 22 of DA2024/0620.

71. The exhibits are returned.

J Gray

Commissioner of the Court

**********

Annexure A (158 KB, pdf)