Merry v Goulburn Mulwaree Council

Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.18, Pt 1, Sch 5, s 9.34
Land and Environment Court Act 1979, s 34

Category: Principal judgment

Parties: Richard Merry (First Applicant)
Sarah Merry (Second Applicant)
Goulburn Mulwaree Council (Respondent)

Representation: Counsel:
R Merry (Self-represented) (First Applicant)
S Merry (Self-represented) (Second Applicant)
A Hemmings (Respondent)
Solicitors:
Bartier Perry (Respondent)

File Number(s): 2024/297308

Publication restriction: Nil

Judgment

1. COMMISSIONER: Richard and Sarah Merry (the Applicants) have lodged a Class 1 Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is against Goulburn Mulwaree Council’s (the Respondent) Development Control Order No DE/0092/2223 issued on 9 July 2024 in identical terms to each of the Applicants (DCOs)to demolish works (Order 3) and to restore works (Order 10) under Pt 1 Sch 5 of s 9.34 of the EPA Act in respect of unauthorised works carried out at 1790 Taralga Road, Tarlo legally identified as Lots 207, 228 and 229 in DP 750045, Lot 204 in DP 750048, Lot 3 in DP 804128 (the Site).

2. The DCOs relate to a series of eight retaining walls built in an amphitheatre arrangement adjacent to a sensitive watercourse, the Tarlo River, and also relates to alterations and additions made to an existing farm shed including replacement of doors and walls, construction of concrete slab, construction of fireplace and new door opening. Specifically, the DCOs requires each of the Applicants to do the following:

“Requirements for Demolish Work Order 3

1. Demolish and/or remove the unapproved retaining walls (terracing) and associated earthworks that form part of the landscaping alongside the Tarlo River (photos attached):

a. Environmental controls are to be implemented in accordance with guidelines specified in the ‘Blue Book’, Managing Urban Stormwater: Soils and construction - Volume 1.

2. Demolish and/or remove the unauthorised modifications to the farm shed by

a. Removing the mezzanine level.

b. Removing any unapproved fittings and plumbing.

c. Engaging the services of a licensed electrician to remove and make safe all unauthorised electrical fitting, fixtures and wiring.

d. Removing fixed glass installed to replace exterior walls of the farm shed structure.

3. All equipment/machinery employed in the demolition works is to be used in an environmentally sensitive way.

4. Lawfully dispose all waste material to a licensed waste or recycling facility.

Requirements for Restore Work Order 10

5. Restore the structure back to a farm building ancillary to the use of the land.

6. Restore the affected land to the use and condition in which the premises were before the unauthorised work was carried out.”

3. The Property is owned by the Applicants and they did not engage any legal representation for the hearing. The Applicants did not file any expert evidence.

4. The proceedings commenced on the Site with the two Applicants and the Court was assisted by two single expert reports on behalf of the Respondent. The first expert report was filed on 2 April 2025 and was prepared by Peter Day, Building Surveyor. The second expert report was filed on 1 May 2025 and was prepared by Alan Hamilton, Structural and Civil Engineer. Mr Day and Mr Hamilton spoke to their reports pointing out various matters on the Site.

5. Following the Site view the matter returned to Court, sitting at Goulburn District Court. However, the hearing did not proceed as a result of the parties’ further discussions and reaching an agreement as to the terms of a modified order including adding Order 11 regarding the retaining walls and the provision of a detailed ecological impact assessment report detailing the likely impact of the retaining walls erected on the premises alongside the Tarlo River.

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 12 May 2025. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and modifying the development control order.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to modify a development control order.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 8.18 of the EPA Act to modify a development control order.

11. On appeal to the Court, s 8.18 of the EPA Act provides as follows:

8.18 Appeals concerning orders

(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.

12. The parties have agreed to modify the order by adding an Order 11 regarding a detailed ecological impact assessment report detailing the likely impact of the retaining walls erected on the premises alongside the Tarlo River.

13. 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 because the modified orders are within the power of what the Court may do on an appeal for the reasons set out in the DCOs.

14. 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:

15. The Court orders:

16. The appeal is upheld.

17. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Development Control Orders (Reference: DE/0092/2223) issued by Goulburn Mulwaree Council on 9 July 2024 are modified in the terms set out in the Modified Development Control Orders at Annexures “A” and “B”.

E Espinosa

Commissioner of the Court

Annexure A (1.20 MB, pdf)

Annexure B (1.20 MB, pdf)

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