Shonoda v Liverpool City Council

File Number(s): 2025/248270

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Control Order Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the Development Control Order being a Demolish Works Order No 3 Ref: NO-192/2025 dated 5 June 2025 under Division 9.3 and Item 3 in the Table to Schedule 5 of the EPA Act requiring the demolition of three attached dwellings (DCO) at 9 Aberdeen Road, Busby legally described as Lot 307, DP 222642 (the Site).

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 has been held on 7 October 2025. I presided over the conciliation conference.

3. 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 substituting the order in the DCO.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 8.18(c) of the EPA Act to substitute a development control order and s 8.18(f) of the EPA Act to make such other order with respect to the DCO as the Court thinks fit.

6. 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 and Div 9.3 of the EPA Act in relation to the Court’s power on hearing an appeal against the DCO and in relation to the issue of a DCO. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

7. The DCO was issued to all three registered owners of the Site being the First and Second Applicants and the third registered owner Mamdouh Naem Roffaell. The Respondent’s solicitor informed the Court that on 13 November he met with Mr Momadouh Roffaell (also known as Mamdouh Roffaell) and confirmed his identity. Mr Roffaell confirmed with the Respondent’s solicitor that he was aware of these proceedings and that he agrees to the terms of the amended Orders. The Court has been provided with a letter of authorisation to the Second Applicant to represent Mr Roffaell dated 11 November 2025.

8. The parties agree that the DCO was validly issued and that the Applicants have been afforded procedural fairness and the rules of natural justice have been observed as required by clauses 2, 6, 8 and Part 7 of Schedule 5 of the EPA Act.

9. The parties agree to the Court making an order under s.8.18(c) and s.8.18(f) Act. Pursuant these provisions the Court on hearing an appeal against a DCO may:

10. Substitute for the DCO any other order that the relevant enforcement order could have given; and

11. Make such other order with respect to the DCO as the Court thinks fit.

12. The substituted order is prepared in the terms of item 3, of Part 1 of Schedule 5 of the EPA Act, being a Demolish Works Order. These Orders are orders that Liverpool City Council could have given in these circumstances.

13. The substituted order requires compliance in accordance with the dates as set out in the Annexure A.

14. The substituted Order is therefore one that the Court could give or make, pursuant to s 8.18 of the EPA Act.

15. 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.

16. 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. A Development Control Order issued by the Respondent on 5 June 2025 in respect of Lot 307 in Deposited Plan 222642 on the land known as 9 Aberdeen Road, Busby dated 5 June 2025 is substituted with the Development Control Order in Annexure A pursuant to s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979*.*

E Espinosa

Commissioner of the Court

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Annexure A (46.3 KB, pdf)