Hilton v Sutherland Shire Council

File Number(s): 2024/381408

Publication restriction: Nil

Judgment

COMMISSIONER:

1. 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 (RN2023-056411, dated 1 October 2024) issued by the respondent under s 9.34(1) and Part 1 of Schedule 5 of the EPA Act (DCO) to the applicant in relation to land identified as Lot 450 in Deposited Plan 1179103 and known as 26 Wategos Street, Greenhills Beach (Site). The DCO comprised Order No. 11 – Compliance Order, which required the applicant to relevantly comply with conditions of consent granted under DA14/0138 (Consent), particularly with respect to landscaping.

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 C4 Environmental Living under the Sutherland Shire Local Environmental Plan 2015 (SLEP).

4. The Site is owned by the applicants.

5. At the time the DCO was issued, the following works had been constructed on the Site (collectively, the Works):

6. carparking area within the front setback;

7. basketball court within the rear south eastern corner;

8. artificial turf along the southern boundary between the dwelling house and the fence; and

9. paving along the northern boundary between the dwelling house and fence.

10. It was the respondent’s contention that these Works:

11. were constructed in a manner inconsistent with the Consent and were unlawful;

12. did not comply with development standards as set out in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; and

13. resulted in inadequate landscaping which was inconsistent with the requirements of the SLEP and Greenhills Beach Development Control Code.

14. The respondent issued the applicants with a Notice of Intention to Give a Development Control Order on 16 September 2024.

15. The respondent issued the applicants with the DCO on 1 October 2024.

16. The applicants commenced Class 1 proceedings on 15 October 2024, being within the time period specified in s 8.18(3) of the EPA Act.

17. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 9 April 2025 and terminated on the same date. The matter was then listed for hearing on 14 and 15 August 2025.

18. Prior to the hearing, the parties reached agreement as to the resolution of the proceedings. The agreement reached is for the DCO to be modified (Modified Order). The Modified Order generally requires the applicant to demolish the Works.

19. Separately, the applicants have provided an undertaking to the respondent to carry out various agreed landscaping following the demolition of the Works (Landscaping Works).

20. The parties provided a signed s 34 agreement reflecting the above agreement on 1 August 2025 and requested that the matter be listed for a further s 34 conciliation conference. The Court granted this request, and the matter was listed for a second s 34 conference on 14 August 2025 and the hearing vacated. I presided over the conciliation conference. The parties provided an updated s 34 agreement on 14 August 2025 to address outstanding jurisdictional issues.

Jurisdictional considerations

14. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders modifying the DCO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). 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.

15. 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.

16. It is clear that the Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

17. I am satisfied the DCO should be modified in the manner proposed by the parties on the basis that:

18. The Modified Order is agreed by the parties to be issued pursuant to Item 11 of Pt 1 of Sch 5 of the EPA Act, being a “compliance order”. The applicants are the owners of the Site such that they are able to be issued with the Modified Order (and DCO as originally issued) pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act.

19. The Modified Order requires removal of the Works as these Works were in breach of the Consent. The requirement to remove the Works so as to comply with the Consent therefore falls within the scope of Item 11 of Pt 1 of Sch 5 of the EPA Act and are in accordance with s 9.34 of the EPA Act.

20. Although not ordered by the Court, the applicants’ undertaking to carry out the Landscaping Works (which the parties agree does not require development consent) will assist to resolve the respondent’s concerns in relation to the landscaping on the Site.

Conclusion and orders

18. 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.

19. The Court notes that the applicants have undertaken to carry out landscaping works in accordance with the following plans by 31 December 2025:

| Landscape Plans | | No | Plan | Prepared By | Date | | 01 C | Site Plan | Entrenched Landscapes & Design | 12 May 2025 | | 02 C | Landscape Plan – Front | Entrenched Landscapes & Design | 12 May 2025 | | 03 C | Landscape Plan - Rear | Entrenched Landscapes & Design | 12 May 2025 | | 04 C | Planting Plan - front | Entrenched Landscapes & Design | 12 May 2025 | | 05 C | Planting Plan - rear | Entrenched Landscapes & Design | 12 May 2025 | | 06 C | Planting schedule | Entrenched Landscapes & Design | 12 May 2025 | | 07 C | Specification | Entrenched Landscapes & Design | 12 May 2025 |

20. The Court orders that:

21. The appeal is upheld.

22. The respondent’s Development Control Order dated 1 October 2024 is modified in accordance with s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW) in the terms set out in the modified Development Control Order at Annexure A.

N Targett

Commissioner of the Court

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Annexure A (208 KB, pdf)