Spedding Estates Pty Ltd v Tweed Shire Council

Background facts

1. The property the subject of the proceedings is known as 'Bellingdale Farm', located at 47 Hindmarsh Road, Nunderi NSW 2484, being Lot 3 in DP 582718 and Lot 1 in DP 1240727 (the property).
2. The property is zoned RU2 Rural Landscape under the Tweed Local Environmental Plan 2014 (Tweed LEP 2014), and has an approximate land area of 51.42ha.
3. The directors of the applicant company are John Anthony Spedding and his wife Donna Spedding.
4. There is an existing development consent dated 19 April 1988 (D88/0153) for the "establishment of a restaurant, cafeteria and gallery (craft shop) in the existing buildings" on the property (the 1988 consent). A history of the approved development applications for the property, including the 1988 consent, is set out below: Application No Description Decision D95/9417 Development Application - amendment to Development Consent D95/417 for the addition of tourist accommodation to existing tourist facility Approved - 22/08/1996 1596/95B Building Application (Historic) - building application - tourist accommodation Approved - 05/03/1996 D95/0417 Development Application - addition of tourist accommodation to existing tourist facility Approved - 29/02/1996 1436/93B Building Application (Historic) - building application - community service building Approved - 10/01/1994 Lapsed - 05/09/1996 D93/0410 Development Application - alterations and additions to existing rural tourist facility Approved - 21/12/1993 0898/93B Building Application (Historic) - building application - office Approved - 11/08/1993 D93/0260 Development Application - alterations and additions to buildings at the Griffith Tablecraft Furniture Park Approved 4/08/1993 D88/0153 Development Application - establishment of a restaurant, cafeteria and gallery (craft shop) in the existing buildings Approved - 19/04/1988

1. On 25 February 2019 and 14 March 2019, prior to purchasing the property, the applicant requested information from Council about the existing development approvals for the property. The applicant sought confirmation that "the existing tourist facility is lawful, including the operation of the restaurant / functions, accommodation, gallery / shop". The applicant also sought information about any restrictions in terms of operating hours and guest numbers, and queried whether the "the approved use extends to functions".
2. In a letter dated 4 April 2019, Council's Acting Team Leader, Development Assessment (Mr David O'Connell) responded to the applicant's request concerning the approval history, stating that extensive searches were inconclusive about whether all conditions of consent had been met and all contributions paid, and any restrictions on guest numbers and operating hours. Council noted that a function centre use was identified as a prohibited land use in the RU2 Rural Landscape zone.
3. On 20 May 2019, the applicant wrote to Council seeking confirmation that the following intended uses were within the existing development consents provided by Council: 1) Operation of the property under its tourist facility approval with a focus on farm tourism and a paddock to plate high end beef operation (note that there will be no butchering of animals on site); 2) Restaurant focusing on local produce and paddock to plate concept; 3) Gallery and shop; 4) Tourist accommodation within the 5 tourist accommodation buildings, each comprising 3 units (a total of 15 units). 5) Functions / events / weddings - operation within the approvals and ancillary to the rural tourist facility and tourist accommodation. Evidence of functions, weddings and events are documented within Council files and on advice from locals. 6) Use of office building; 7) Use of residence with swimming pool.
4. On 21 May 2019, Council's Manager, Development Assessment/Development Assessment and Compliance (Mr Lindsay McGavin) responded, advising that Council was not in a position to confirm that the intended uses align with the development consent history for the site. It was suggested that the applicant engage a suitably qualified and experienced planning consultant to undertake an audit of the development consents and other relevant approvals to determine at least the following: The nature, term and detail of the consents/approvals in comparison to the uses you wish to undertake; If the consents commenced in accordance with the provisions of the NSW Environmental Planning and Assessment Act; The extent of compliance (or non-compliance) with the conditions of the consents and approvals; and The alignment of the actual built form and ancillary works in comparison to the approved plans.
5. On or about 11 June 2019, the applicant purchased the property.
6. In his affidavit filed on 22 February 2023 at 8:49pm, Mr Spedding said that on or about October 2019, the applicant commenced works on the property to repair the existing buildings. These works included: 1) Replacement of some windows and doors on site; 2) Earth removal from area surrounding ground floor gallery/shop area. This was to repair the collapsing blockwork at the area; 3) Relocation of stairs to the front of the building on site in order to provide access to the first floor; 4) Replacement of roof of entire building including the remaining exposed kitchen; 5) Installation of first floor above kitchen; 6) Replacement of existing kitchen exhaust; 7) Replacement of kitchen benchwork and installation of new appliances; and 8) Repair and replace kitchen floors and benchwork in the refreshment room.
7. On 15 November 2020, the applicant submitted an Application for Food Premises Registration at the property and on 7 December 2020, Council's Senior Building Surveyor (Mr Robert Noakes) and Council's Health Officer (Ms Jacqui Cord) attended an onsite inspection in relation to that application. On the same day, Council's Environmental Health Officer Ms Cord requested that the applicant submit an Application for Food Premises Fitout, including detailed plans of the food premises fitout against relevant approvals for the site.
8. On 9 December 2020, following the site inspection on 7 December 2020, Council issued the applicant with a Show Cause notice regarding possible unauthorised building works on the property and that the existing development appeared not to be in accordance with existing development consents. The Show Cause notice provided: It is now requested that you Show Cause in writing (email is sufficient) as to what works have been undertaken at the premises. Should you believe that the works are consistent with a previous approval, please provide evidence to support your facts. Your submission should also include the following but not limited to: 1. Who carried out the work? 2. When was the work carried out? 3. Why was the work carried out without the appropriate approvals? 4. A sketch plan of all the structures on the premises, please include measurements and intended use for each structure/area. The enclosed attachments were as follows: 1. correspondence from Tweed Shire Council, dated 4 April 2019; 2. email from Lindsay McGavin, Tweed Shire Council, dated 21 March 2019; 3. photo from Facebook, obtained on 9 December 2020; 4. photo from Real Estate.com dated November 2018, obtained on 9 December 2020; 5. consent 88/153 - The establishment of a restaurant, cafeteria and gallery (craft shop) in the existing buildings, dated 19 April 1998; 6. building plan associated with 88/153, dated 3 March 1988; 7. advertisement for Bellingdale Farm promoting weddings, obtained on 9 December 2020; and 8. aerial images of the premises, current, 2018 and 2015.
9. Attachment 6 to the Show Cause notice was an image of the building plan associated with the 1988 consent, titled 'Proposed Ground Floor Plan including Restaurant Courtyard and Gallery at Lot 3 Hindmarsh Road via Clothiers Creek Road Condong' (approved plan). The approved plan marks an area in the west wing of the building, labelled 'Restaurant' which extends southwards to an area labelled 'Verandah Restaurant'.
10. Attachment 8 to the Show Cause notice contained aerial images of the property said to be current as at 2018 and 2015. In its subsequent letter to the applicant dated 24 February 2021, Council relied on these aerial images in stating that the designated 'Restaurant' and 'Verandah Restaurant' areas, which were approved under the 1988 consent for the use of a restaurant and verandah restaurant, were no longer present on the property. This contributed to Council's view, as reflected in the DCO, that the property "does not enjoy the benefit of a development consent for functions in the designated areas where these events occur and in the designated areas where works have been undertaken without regulatory approval".
11. Attachment 7 to the Show Cause notice was an advertisement displaying the web page "Our Story - Bellingdale Farm" obtained from the applicant's website on 9 March 2020. There was no reference to a restaurant in the information displayed on this web page. It said: …Bellingdale is just 25 minutes from Gold Coast airport, which is perfect for destination weddings. … Bellingdale Farm is a highly sought after wedding venue, that should not be overlooked when searching for the perfect place to tie the knot. With exceptional views, food and on-site accommodation, Bellingdale Farm is a dream come true.
12. On 16 December 2020, Mr Nick Folkers, Director of Evolve Planning Services Pty Ltd, provided a 3 page email response on behalf of the applicant to Council's Show Cause notice. His response largely recited the development consent history for the property, and included by way of short conclusion: Council files confirm the operation of the site for purposes for the manufacturing and sale of furniture, gallery, restaurant and cabins as a Rural Tourist Facility including wedding[s] and events. As such it is considered that the use of the site as a Rural Tourist Facility in accordance with the above development consents, with the exception of DA93/410 would be considered to be lawful if undertaken in accordance with the requirements of those consents and as proposed in the intended uses that John and Donna previously provided. The evidence found in Council's files would indicate that to be the case.
13. On 29 January 2021, prompted by a communication from Zoe Fobian (then Compliance Officer, Development Assessment and Compliance), the applicant provided a further response to Council's Show Cause notice of 9 December 2020. The applicant stated that whilst trying to extend the timeframe of the conditional offer on the property, it engaged Mr Folkers on 22 May 2019 to complete an audit as recommended by Council on 21 May 2019. The applicant said that the audit confirmed that the use of the site as a rural tourist facility would be considered lawful, and that this would include functions and events as ancillary to the primary use.
14. In relation to the Bellingdale Farm website, the applicant explained that "weddings have received focus on our initial website due to the long lead time for bookings…however, the rural tourist facility, restaurant, accommodation, gallery and shop will be the main activities with weddings and private functions ancillary to these activities."
15. The applicant also provided details about the restoration and renovations already carried out on the property, stating that "we have repaired and renovated as per the original plans, including approvals post this." The applicant also said: "we coordinated and managed this process ourselves and intended (which we still do) to approach Council and submit any construction certificates required to rebuild any additional parts of the building that had been completely removed or demolished."
16. On 24 February 2021, Ms Fobian (then Compliance Officer, Development Assessment and Compliance) provided a lengthy response to the applicant's letter of 29 January 2021. In relation to the 1988 approval for the establishment of a restaurant, cafeteria and gallery (craft shop) in the existing buildings, Ms Fobian stated the following: Whilst this approval appears to have been legally commenced, the building which likely contained the restaurant and cafeteria (being the showroom approved under D86/0568) is no longer present. … Any proposal to relocate the restaurant and cafeteria to another building on the site, would require either a new development approval or a s 4.55 Modification to the current approval. It must be noted that any such application must address how the proposal is substantially the same as the development which was granted under the original consent.
17. Ms Fobian noted tree removal in close proximity to the homestead and surrounds on the property, which Council considered had occurred as a result of earthworks conducted without approval.
18. Ms Fobian stated Council's view that the definition of "rural tourist facility" in the Tweed Local Environmental Plan 1987 "does not extend to functions or events which are not directly related to providing tourists with a rural education, such as weddings and conferences". Rather, Council held the view that "a wedding and/or conference venue may be best defined as a function centre under the Tweed LEP 2014 which is a prohibited land use in the RU2 zone." Ms Fobian also stated Council's view that "the holding of weddings, functions and events are not considered to be ancillary to the current approvals for the site as it would be a separate and dominant use, and not subservient to the use of the restaurant or tourist accommodation cabins."
19. Subsequently to receiving the Show Cause notice and the letter from Ms Fobian dated 24 February 2021, the applicant sought advice from its solicitors, Mills Oakley.
20. On 12 March 2021, the applicant provided to Council a letter of advice from Mills Oakley dated 11 March 2021. In the letter of advice, Mills Oakley noted its instructions in relation to the applicant's proposed use of the property: 12. You purchased the [p]roperty in June 2019 and since that time you have undertaken a number of rectification works to some of the buildings which were present on the [p]roperty, due to their state of disrepair. 13. You are currently proposing to use the buildings on the [p]roperty (including the restaurant, kitchen, toilets, gallery and courtyard area) for the purposes of a restaurant (as a 'paddock to plate' concept business operation) and occasionally hold wedding receptions at the venue. … 29. We are instructed that the use of the restaurant for weddings will involve: a. Use of the existing buildings (including the restaurant, courtyard and gallery) for the wedding reception, depending on numbers. A smaller wedding of approximately 80 guests may be conducted over part of the existing buildings, with the remainder of the restaurant (on those occasions) to be open to other customer bookings. A larger wedding of 150 would be required to book the entire restaurant; b. Supply of all food and beverages to the wedding event. The restaurant is to be fully licenced. No BYO or outside catering would be permitted; c. Use of the employees of the restaurant to attend and serve the wedding guests, including: d. Kitchen staff to prepare the meals/food; and e. Waitstaff to serve the wedding guests food and drink; f. Use of furniture, cutlery and glassware from the restaurant; g. Provision for a two person band (or similar) or a DJ. The business will propose a number of preferred suppliers for the customer to book directly. All music entertainment is to be limited to 85db inside and 69db outside, with all music to cease by 10.30pm. 30. It is not intended to use the restaurant for the primary purpose of weddings. The hire of the restaurant for the purpose of a wedding is likely to occur only on weekends and it is not anticipated that the restaurant would be hired every weekend for this purpose.
21. The Mills Oakley advice stated: Summary of Advice 5. We consider that the proposed restaurant use of those buildings marked as Restaurant, Kitchen, Courtyard and Gallery (including associated toilet facilities) on the plans shown below would be lawful under the approval numbered D88/0153, being development consent for the establishment of a restaurant, cafeteria and gallery (craft shop) in the existing buildings on the property. Council has indicated, in the February letter, that this consent has been lawfully commenced and therefore has not lapsed (and indeed can never lapse). 6. We also consider…that the proposed use of the restaurant for wedding receptions would fall within the approved restaurant use and would not be considered to be a separate 'function centre' use. 7. A restaurant or café use is defined to include the use of "a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, whether or not liquor, take away meals and drinks or entertainment are also provided." The primary purpose of the business is to prepare and serve, on a retail basis, food and drink which will be consumed on the premises, therefore satisfying the definition of a 'restaurant or café' use. … Ancillary Use 36. If the Council does not agree that the use of the restaurant for wedding receptions is a restaurant use and instead maintains that the use is a function centre use, we consider that the wedding reception hire of the restaurant would in any case be ancillary to the approved restaurant use.
22. On 28 April 2021, Ms Fobian and Mr Noakes undertook a further site inspection. On 29 April 2021, Ms Fobian advised the applicant that Council could not provide retrospective approval or an interim approval for the site. Due to the outstanding matters on the site, the food fit out approval could not be issued or the liquor licence application supported until these matters had been rectified. This was reiterated by Council on 7 May 2021, when Ms Fobian advised the applicant that she had met with staff involved in the matter, and that it had been determined: 1. Council are unable to provide the food fitout approval until the Building Information Certificate has been issued and modifications to the consent have been made; 2. Council are unable to support the liquor licence as the application Council received reflects areas that do not have approval.
23. It was also "strongly suggested that the site is not used at all until approval has been granted. Reason being, is that Council have some serious concerns with the outstanding building works." Ms Fobian set out a list of concerns raised by Council's Building Unit and a list of Building Code of Australia (BCA) issues.
24. On 9 June 2022, the applicant lodged a modification application to development consent D88/0153 and development consent D93/0260. This application was refused by Council on 10 June 2022 on the ground that it was unclear as to what modifications were being proposed.
25. On 6 July 2022, Council gave notice to the applicant of a Proposed Development Control Order (Order 1 - Stop Use) pursuant to cl 8 of Part 6, Sch 5 to the EPA Act, directing the applicant to stop using the premises for wedding receptions (the proposed DCO). The reasons provided in the proposed DCO included: 1. The subject site is operating functions such as weddings, wedding receptions and the like which are prohibited uses in the zone. 2. The subject site does not enjoy the benefit of a development consent for functions in the designated areas where these events occur and in the designated areas where works have been undertaken without regulatory consent. 3. The building has numerous BCA non compliances as detailed in the NCC 2019 Volume 1 Compliance report from Coastline Certification Group Pty Ltd Rev - 14 April 2022. In particular the non compliances in respect of Parts C, D & E have the potential to cause injury and loss of life. … 4. Numerous plumbing and sanitary drainage works have been carried out without regulatory inspections or approval. This may provide potential for adversely affecting the health of persons from cross contamination. Work as Executed drainage plans and certification from a licenced plumber in respect of AS3500 has not been submitted. 5. The site does not have a current food fit out approval.
26. On 27 July 2022, the applicant's solicitors Mills Oakley provided directly to Council a letter in response to items 1 and 2 of the proposed DCO. Mills Oakley's letter stated, firstly, that the use of the buildings shown on the approved plans falls within the definition of 'restaurant' under the Tweed LEP 2014, being "a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, whether or not liquor, take away meals and drinks or entertainment are also provided." This definition was distinguished from the definition of 'function centre', being "a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres, but does not include an entertainment facility."
27. Secondly, Mills Oakley's letter stated that in the event Council was not satisfied that the occasional wedding held on the property is part of the 'restaurant' use and is in fact a separate use, Council should be satisfied that the use for the purposes of hosting weddings is ancillary to the permitted restaurant use, relying on Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 as authority.
28. On 19 August 2022, Council gave to the applicant a DCO pursuant to s 9.34(1)(a) and Item 1 of Pt 1 of Sch 5 to the EPA Act. The terms of the DCO are as follows: 1. Order No. 1 will require the Recipient to Stop Using the property and/or any building on the property for the use of weddings and/or functions. 2. This Order is to take effect within twenty-one (21) days of the date of the Order.
29. On 25 August 2022, the applicant requested that Council take no enforcement action prior to 23 September 2022 as it was intending to submit a DA prior to that date.
30. On 9 September 2022, the applicant commenced the DCO proceedings pursuant to s 8.18(4) of the EPA Act, which provides: 8.18 Appeals concerning orders (1) A person who is given a development control order may appeal to the Court against the order. … (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.
31. On 19 September 2022, the applicant filed the stay motion.
32. By way of letter dated 20 September 2022, the solicitors for Council, Hall & Wilcox, invited the applicant to consider giving an undertaking to not take any further bookings for the purpose of functions at the property beyond the functions that had already been booked between September 2022 and 10 December 2022. The letter stated: Council would be of the understanding that as of 10 December 2022 there would be no further function / events taking place on the property unless or until development consent for that purpose is granted.
33. On 23 September 2022, Mills Oakley responded to the 20 September 2022 Hall & Wilcox letter, stating that "there are a number of bookings taken some time ago for …3, 4, 10, 18, 24 and 31 March 2023." The applicant requested that these bookings in March 2023 be included in the undertaking.
34. On 26 September 2022, the solicitors for Council rejected the applicant's request to include the March 2023 bookings in the undertaking: In our letter of 20 September, we discussed the complete booking regime that your client had provided to the Council and worked to accommodate that regime in good faith. What is clear, is that your client has now proceeded to take further bookings in recent weeks for the month of March in 2023. Even if those March dates were taken earlier but not disclosed to Council along with the September to December bookings, there is ample time in the calendar for those March 2023 bookings to be re allocated. Those bookings for the month of March are not agreed by the Council to be included in the undertaking.
35. On 27 September 2022, Mr and Mrs Spedding, as directors of the applicant, gave an undertaking to Council in the following terms: 1. We will not take any further bookings for the use of the property for weddings or other events until after 28 February 2023 or the development application which is to be lodged by us for the use of the property is determined, by way of approval, whichever occurs first. 2. Whilst ever the undertaking in item 1 is operative, we further undertake that we will only use the property for the current bookings for weddings or other events, which have been booked for the following dates: (a) 29 and 30 September 2022; (b) 1, 6, 8, 14, 15, 21, 22 and 29 October 2022; (c) 4, 11 and 25 November 2022; and (d) 10 December 2022.
36. In its letter dated 23 September 2022, the applicant did not disclose to Council that any bookings that had been made for weddings beyond March 2023, in particular those that are booked for: 1. 14, 21, 28 and 29 April 2023; 2. 6, 11, 13 and 18 May 2023; and 3. 7 July 2023.
37. On 28 October 2022, Council filed a Statement of Facts and Contentions in the DCO proceedings which stated that as at that date, it had received 21 noise complaints from neighbours. However, the applicant submits, and I accept, that these complaints have primarily been made by two persons who live near the property.
38. On 15 November 2022, the applicant filed a Statement of Facts and Contentions in Reply.
39. On 31 October 2022, the applicant lodged the DA. This was formally accepted by Council on 16 November 2022. In its letter of 25 August 2022 requesting that Council take no enforcement action, the applicant had stated that it intended to submit the DA prior to 23 September 2022.
40. On 1 February 2023, the applicant commenced the DA proceedings, and on 6 February 2023, Council refused the DA. Council included in its reasons for refusal that: 2. Pursuant to section 4.15(1)(a)(i) - The proposal is contrary to the objectives of Zone RU2 Rural Landscape as set out in clause 2.3 [of] the Tweed Local Environmental Plan 2014… It is considered that the scale of the development is inconsistent with the rural nature of the area, and the application fails to demonstrate that the impacts associated with the operation of the premises will not have an adverse impact on the amenity of neighbouring properties. The proposal is similar in scale and operations toa function centre which is prohibited in Zone RU2. … 6. Pursuant to section 4.15C(1)(e) - The proposed operation of a 'restaurant' with a patronage capacity of up to 153 guests in a rural zone, which has a history of operating as a wedding venue/function centre which is prohibited in the zone and ongoing complaints in relation to noise is not considered to be in the public interest.

Motion for a stay of the DCO

1. At the hearing of the motion for a stay of the DCO, the applicant read affidavits of: 1. Emma Whitney, solicitor employed by the solicitor for the applicant, dated 16 September 2022 and 22 February 2023 (the latter affidavit filed at 4.42pm on 22 February 2023); and 2. John Spedding, director of the applicant (filed at 8.49pm on 22 February 2023.
2. In his affidavit, Mr Spedding said that: We have at all times complied with the Undertaking and have not carried out any private bookings outside the dates permitted by the Undertaking. We have not taken any further bookings since entering into the Undertaking. We are prepared to enter into a further Undertaking and not take any further bookings until such time that the Development Application is approved, or by any further orders of the Land and Environment Court of NSW.
3. An analysis of the evidence in relation to bookings for the 15 weddings booked in the period 3 March 2023 to 7 July 2023 shows that the most recent booking was made on 20 July 2022 and the earliest on 27 June 2021. I find therefore that all bookings were made prior to the giving of the DCO on 19 August 2022. However, the analysis also discloses that: 1. all 15 bookings were made after the Show Cause notice was issued on 9 December 2020; 2. all 15 were made after Council's lengthy response of 24 February 2021 to the applicant's letter of 29 January 2021; 3. all 15 were made after Ms Fobian's communication of 19 April 2021 and that of 7 May 2021 where it was "strongly suggested that the site is not used at all until approval is granted. Reason being, is that Council has some serious concerns with the outstanding building works"; and 4. three were made after Council gave notice on 6 July 2022 of the proposed DCO.
4. In his affidavit, Mr Spedding said that since the renovations, the applicant has been unable to obtain consent from Council to operate the kitchen. As a result of being unable to operate the kitchen, the applicant's day-to-day operations have been slightly modified to only take bookings for large groups where the number of guests is known, and the menu selection is made beforehand. This enables the applicant to prepare meals offsite and deliver, rather than cooking on the property.
5. The respondent read affidavits of: 1. Zoe Fobian, a Community Disaster Resilience Office in Council's Corporate Governance section (filed 22 February 2023); 2. Robert Noakes, Senior Building Surveyor employed by Council (filed 22 February 2023); and 3. Samantha Frost, Law Graduate employed by the solicitor for the respondent (filed 23 February 2023).
6. In his affidavit, Mr Noakes identifies a number of inadequacies with the building on the property, as well as a lack of evidence and certification of compliance with the National Construction Code 2019 (NCC 2019) that give rise to "great concern in respect of risk to human life and safety regarding fire safety measures, construction and egress".
7. Mr Noakes refers to provisions of the NCC 2019, as well as the following reports: 1. Structural Engineering Report prepared by Globe Consulting Pty Ltd dated 21 January 2022 (Structural Engineering Report). 2. Accessibility Report prepared by Purely Access dated 27 May 2022 (Accessibility Report). 3. Building Assessment Compliance Report prepared by Coastline Building Certification Group Pty Ltd dated 12 October 2022 (Coastline Building Assessment Compliance Report).
8. The Structural Engineering Report notes that a visual site inspection was undertaken of the property on 1 June 2021 and 14 December 2021 "to view the new works … for the purpose of providing comment and recommendation on structural adequacy." It makes observations and "General Remarks/Recommendations" about the following new works on the property: kitchen and deck re-stumping, awning over the external bar and alternation to the internal wall in bar, gallery alterations, bar/reception enclosed roof, and cabin deck additions. Where recommendations were made, the report contains an update confirming that the particular recommendation has been implemented. The report states that each of the new works is "adequate for design loads".
9. A further Structural Engineering Report by Globe Consulting dated 19 July 2022 is exhibited to Mr Spedding's affidavit. It confirms that an additional inspection was undertaken on 14 July 2022 to "view the new works items…for the purpose of providing comment and recommendation on structural adequacy." The report also states that it is "based on the inspection of accessible and visible structures only and does not include the condition of inaccessible or concealed areas of the building/structures".
10. It was submitted orally by Council, and I accept, that neither of the Structural Engineering Reports produced by Globe Consulting is a certification of structural adequacy.
11. The Accessibility Report details actions required and makes recommendations to ensure that the property is compliant with current accessibility requirements. This report is also referred to in Mr Spedding's affidavit, as well as a subsequent Performance Solution Report prepared by Purely Access on 30 May 2022 (Performance Solution Report).
12. The Performance Solution Report identified, and Mr Spedding acknowledges in his affidavit, the following items as not meeting the 'Deemed to Satisfy' requirements: 1. Pedestrian access from the allotment boundary. 2. Internal stair between restaurant area is not in accordance with Clause 11 of AS1428.1 2009 in the following ways: a. A single handrail is provided which is not in accordance with Clause 12. b. The handrail does not extend one tread width plus 300mm at the bottom or 300mm at the top. c. Stairs have inconsistent tread dimensions. d. The profile of the stair is not in accordance with figures 27)A) & 27(B). e. No TGSI's are installed. f. Stair is less than 1000mm wide. 3. External Stair area is not in accordance with Clause 11 of AS1428.1 2009 in the following ways: a. The stair has open risers. b. No TGSI's are provided. c. Handrails are not in accordance with Clause 12 and do not extend one tread width plus 300mm at the bottom and 300mm at the top. 4. Doorways are no[t] in accordance with AS 1428.1 2009 in the following ways: a. Door widths are less than 850mm clear opening. b. The approach dimension to the unisex accessible sanitary facility at the upper level is1190mm in lieu of 1240mm. c. There is no latch side dimension to the door adjacent to the bar leading to the café area. d. Door hardware is not D type. e. Threshold ramps (once installed) have a rise of up to 50mm in lieu of a maximum of 35mm.
13. The Coastline Building Assessment Compliance Report outlines compliance items and actions required by the applicant as at 12 October 2022. In his affidavit, Mr Spedding says that he has implemented a number of the recommendations that arose from the report, with the following still outstanding: a. Rebuilding of the ramp. This requires development consent and will be installed upon approval of the Development Application; b. New handrails to be installed on each side of the stairs; c. Installation of threshold ramps as per access report; d. Ground level below verandah to be raised to reduce distance between the finished floor level of the verandah and the floor level by 10cm; e. Emergency exit sign installation to stairs leading to the kitchen; f. Locks on all exit doors to be removed; g. Handrails on external front main entrance stairs to be installed (these have been manufactured and are at the Property); h. Tactile indicators- top and bottom; i. DDA compliant door hardware to be provided to door; j. Brail signage to be installed; k. Decals to be installed to glass doors; l. Light switch on persons with disability bathroom to be adjusted; m. Persons with disability car parking space to be marked and signed; n. Design certificate for fire hydrant system/fire engineer to review fire compartmentation plan; o. Drawing outline of ventilation provided to the subfloor of building; p. Issue a final Performance Solution Report;
14. Also exhibited to Mr Spedding's affidavit is a Fire Hydrant, Fire Hose Reel & Fire Extinguisher Report prepared by Arkeda Consulting Group as a result of an inspection of the property conducted on 16 July 2022. The report makes "findings and recommendations for the alterations and additions that would be required to upgrade the property to current [NCC 2019] requirements." It notes that the property requires water storage, pumps, fire hydrants and fire hose reels in order to comply with the NCC 2019.
15. During the hearing, the applicant tendered invoices and accompanying 'Certificates of Inspection & Maintenance Annual Condition Reports' from Firecom Australia. These materials indicate that on or around 17 November 2020 and 15 December 2022, a number of fire extinguishers, fire hose reels and fire blankets were installed at the property.
16. Council submitted orally, and I accept, that the certification provided in relation to the installation of fire hose reels, extinguishers and blankets does not address the more pressing risks of fire danger that are to be mitigated by installing the outstanding items in the Arkeda report, being water storage, pumps and fire hydrants.
17. During the hearing, the applicant tendered a "Notice of Work for Plumbing and Drainage Work" and a "Certification of Compliance for Plumbing and Drainage Work" with a completion date of 31 May 2021. Relying on these documents, the applicant submitted that the required plumbing and drainage works have been inspected and certified as satisfactory, in addressing Council's concern in the DCO that "numerous plumbing and sanitary drainage works have been carried out without regulatory inspections or approval."
18. Further exhibited to Mr Spedding's affidavit is a Certificate of Compliance of Emergency Escape Lighting & Exit Signs dated 18 February 2022 and prepared by Link Electrix. The applicant submitted that this certifies BCA compliance in relation to emergency exits.
19. Also exhibited to Mr Spedding's affidavit is an Environmental Noise Assessment Report prepared by TTM Consulting Pty Ltd dated 22 July 2022. The report stated: Provided the recommendations presented in Section 7 are implemented, the development is predicted to comply with the noise requirements outlined in Section 5. As noise levels are predicted to comply with stated noise limits, the development is not expected to generate an adverse noise impact on the nearby noise sensitive receivers.
20. The recommendations in Section 7 of the report were as follows: ● Amplified sound inside the restaurant with windows/doors open is to be limited to a noise level of 78 dB(A) when measured at 3m from the speakers (or 88 dB(A) at 1m); ● Amplified sound inside the restaurant with windows/doors closed is to be limited to a noise level of 89 dB(A) when measured at 3m from the speakers (or 99 dB(A) at 1m); ● Amplified sound in outdoor areas is to be limited to a noise level of 72 dB(A) when measured at 3m from the speakers (or 82 dB(A) at 1m); ● No boisterous patron activity is permitted outdoors after 10pm. At 10pm, use of outdoor areas is to cease and patrons moved inside; ● Staff are to monitor patron behaviour to ensure that noise generated is reasonable and patrons depart the site in orderly manner; ● The disposal of waste bottles during an event is to occur into a container inside the venue, and then emptied into outdoor bulk bins during daytime hours; ● Deliveries should be conducted during daytime hours of 7am to 6pm where possible; ● Any grates or other protective covers in the entrance driveways must be rigidly fixed in position to eliminate movement and be maintained.
21. Mr Spedding deposed that: "[w]e have implemented all the management strategies as set out in the Environmental Noise Assessment Report." He also says that: "[w]e have endeavoured to address the concerns of local residents Ms Ros Bailey and Mr Mike Hancock regarding noise, and we ensure that all activity has concluded by 10:30pm, with all amplified music being permitted ending at 10:30pm."
22. Council submitted orally that there is no evidence of certification of the applicant's compliance with TTM Consulting's recommendations, or as to whether there has been any monitoring of noise results since the recommendations were made.
23. In her affidavit, Ms Frost says that she conducted two identical searches of the applicant's website on 17 February 2023 and 22 February 2023. As at 17 February 2023, the website provided functionality to send a booking enquiry to 'Bellingdale Farm' under any of the following booking options for any time period up until the year 2025: Garden Ceremony & Homestead Wedding Reception; Dining at the Homestead Restaurant (Coming Soon); Ceremony Only; Event
24. As at 22 February 2023, Ms Frost's search indicated that these four options had been removed from the website and replaced with the following: Group Bookings Dining at the Homestead
25. At the resumption of the hearing of the stay motion at 3pm on 23 February 2023, Mr Tomasetti foreshadowed that Mr and Mrs Spedding as directors of the applicant would jointly proffer an undertaking to the Court in the following terms: 1. We will not take any further bookings for the use of the Property for weddings or other events until development application (being DA/0765) in proceedings numbered 2023/00033972 is determined by way of approval. 2. Whilst ever the undertaking in item 1 is operative, we further undertake that we will only use the Property for: a) as a restaurant in accordance with DA88/153 b) wedding or other events, which have been booked for the following dates: 1) 3, 4, 10, 18, 24 and 31 March 2023; 2) 14, 21, 28, 29 April 2023; 3) 6, 11, 13 and 18 May 2023; 4) 7 July 2023.
26. After the hearing of the stay motion, the applicant's solicitor informed the Court that her client agreed to proffer the undertaking to the Court in the terms foreshadowed.

Power to make interlocutory orders

1. Section 22 of the LEC Act provides that the Court shall grant "all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined." Section 23 of the LEC Act empowers the Court, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.
2. In CVA Apartments Pty Ltd v Burwood Council [2020] NSWLEC 11, where three Class 1 applicants sought a stay of the operation of three DCOs given by the respondent, Pepper J identified the above provisions as the source of the Court's power to grant a stay in Class 1 proceedings.
3. The Court's power to make the interlocutory orders sought by the applicant were not in dispute.

Principles in relation to the staying of orders pending an appeal

1. Likewise, the principles in relation to the staying of orders pending an appeal were not in dispute.
2. In Snowy Monaro Regional Council v Cmunt (No 3) at [17], Pepper J summarised the principles set out in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 as follows: [17] The principles may be relevantly summarised as follows: (a) first, it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It is sufficient that the applicants for the stay demonstrate a reason or an appropriate case to warrant the exercise of discretion in their favour; (b) second, the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties; (c) third, the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears; (d) fourth, the Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it; (e) fifth, where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay; and (f) sixth, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them from making a preliminary assessment about whether the appellant has an arguable case. See also Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 at [34]-[41] (Pepper J); Young v King (No 10) [2016] NSWLEC 70 at [24]-[25] (Sheahan J).
3. In Malass v Strathfield Municipal Council [2020] NSWLEC 168 at [42] Preston CJ cited CVA Apartments Pty Ltd v Burwood Council and the principles in relation to the staying of orders set out by Pepper J in Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 at [17]. In that case, the Chief Judge ordered that the DCO be partially stayed, such that certain works could be carried out, and on the condition that the applicant make and actively pursue a development application and building information certificate application.

Reason or appropriate case to warrant the exercise of discretion in favour of a stay

1. It was common ground that it is not necessary for the grant of a stay that special or exceptional circumstances be made out. It was likewise common ground that the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties. The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears.

Preliminary assessment about whether the applicant has an arguable case

1. It is established that although courts approaching applications for a stay will not generally speculate about the applicant's prospects of success given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent the making of a preliminary assessment about whether the applicant has an arguable case.
2. The applicant submitted that a preliminary assessment suggests that it has good prospects of having the DCO revoked, and that most of the matters raised by Council have been substantively addressed. It submitted that a restaurant use is a permissible use in the RU2 Rural Landscape zone, and that a function centre is not being proposed. Rather, it seeks to continue the approved restaurant use pursuant to the 1988 consent with limited use of the restaurant where clients reserve the whole space for wedding celebrations. The only question was whether the restaurant use can be intensified by enlargement pursuant to the DA, and provided there is no adverse environmental effect associated with the application, the applicant has an arguable case.
3. On 11 March 2021, the applicant received advice from Mills Oakley, a reputable firm, that the proposed restaurant use would be lawful under the 1988 consent, that the proposed use of the restaurant for wedding functions would fall within the approved restaurant use, and that the wedding reception hire of the restaurant would in any case be ancillary to the approved restaurant use.
4. That advice was reiterated directly to Council by Mills Oakley on 27 July 2022.
5. The respondent submitted, consistent with the terms of the DCO, that the subject site is operating functions such as weddings, wedding receptions and the like which are prohibited uses in the zone; and that it does not enjoy the benefit of a development consent for functions in the designated areas where these events occur and in the designated areas where works have been undertaken without regulatory consent.
6. Council also contended that the building has numerous BCA non-compliances as detailed in the Coastline Building Assessment Compliance Report, and the non-compliances in respect of Parts C, D & E have the potential to cause injury and loss of life.
7. It also contended that numerous plumbing and sanitary drainage works have been carried out without regulatory inspections or approval and that the site does not have a current food fit out approval.
8. Notwithstanding the respondent's concerns in relation to items identified in the Coastline Building Assessment Compliance Report, I find that the applicant, having received advice from Mills Oakley that the proposed restaurant use is an approved use pursuant to the 1988 consent, that the proposed use of the restaurant for wedding receptions would fall within the approved restaurant use, and that the wedding reception hire of the restaurant would in any case be ancillary to the approved restaurant use, has an arguable case in the DCO proceedings. By so finding, I do not in any way intend to suggest that the respondent's contentions to the contrary are not without substance.

Risk that the appeals will prove abortive?

1. It is established there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
2. The respondent submitted, and I accept, that the DCO proceedings will not prove abortive if the stay is not granted. I likewise find that there has been identified no risk that the DA appeal proceedings will prove abortive if the stay is not granted. If the applicant is successful in either appeal, it will be able lawfully to resume the use of the property and/or any building on the property for weddings and/or functions.

Competing rights of the parties and the balance of convenience

1. In the exercise of the discretion whether or not to grant the stay and, if so, as to the terms that would be fair, I must weigh the balance of convenience and the competing rights of the parties.
2. In his affidavit, Mr Spedding deposed that if the stay of the DCO is not granted, the applicant will have to communicate with 15 couples to cancel their wedding venue, many of whom have booked up to 18 months in advance and have planned their entire wedding, including accommodation, the ceremony and choice of suppliers around the property.
3. Mr Spedding said that if the 15 weddings that are booked at the property between 3 March 2023 and 7 July 2023 are cancelled, the applicant will suffer financially as it will have to refund all deposits paid by couples to secure their wedding. The total cost of all 15 weddings is $250,254.05, with $231,211.55 already paid. Furthermore, if the property is closed and out of operation, ongoing expenses must be paid for, including costs associated with running an empty site, such as costs of equipment and appliances, utility expenses, loans and bills.
4. Mr Spedding also said that he was concerned about the level of negative publicity the applicant will receive on various public platforms including social media which may detrimentally impact the future operation of the applicant's business, especially if the couples are unable to find new venues.
5. The applicant submitted that if the stay is not granted, it and its clients will suffer significant hardship. It submitted that the balance of convenience favours the grant of a stay because the first Show Cause notice was over two years ago (it was dated 9 December 2020), and the DCO was given some 18 months after the Show Cause notice (it was given 19 August 2022). The applicant moved to stay the DCO in September 2022 (the stay motion was filed on 19 September 2022), and Council was content with the undertaking then given to it (on 27 September 2022). The applicant submitted that if the Council has serious concerns about safety or risk, it would never have accepted the undertaking and permitted the events identified in the undertaking to take place.
6. The applicant further submitted that if the applicant's two appeals are upheld, there would be injustice visited upon it if the stay is not granted. It submitted that it seeks to trade only on commitments made before the DCO was given (on 19 August 2022), and to assist it to continue to trade and have cash flow now that the COVID19 pandemic is over and business is able to resume.
7. The applicant also submitted that the kitchen is not being used for the cooking of food, and that there is no sale of liquor contrary to liquor laws. It submitted that there is no risk of injury or loss of life or safe or equitable access that warrants refusing a stay. It contended that Mr Noakes, in his affidavit affirmed 22 February 2023 says at [7] that his concerns relate to continued use of the property in connection with weddings and functions, and that he is not concerned about continued use of the property as a restaurant. This reading of Mr Noakes affidavit evidence was disputed by the respondent.
8. The respondent submitted that the balance of convenience weighs against the granting of a stay because by its application for a stay, the applicant does not seek to maintain the approved restaurant use, but rather to continue its unconditional use of the property for weddings and/or functions after 28 February 2023. To date, these weddings and/or functions have not proved to be minimal in scope, and they cause adverse effect on the amenity of neighbours and the neighbourhood.
9. The respondent further submitted that the serious question to be tried involves whether the use is prohibited, not merely a permissible use for which development consent is the answer (referring to the DA for the "expansion of an existing restaurant and the use of works undertaken without consent"). Further, Council disputes that the use for weddings is ancillary to the permitted restaurant use. If Council is correct, the unlawfulness of the use will have been allowed to persist without any enforcement whatsoever until at least the determination of the DCO proceedings.
10. The respondent also submitted that the property cannot be used as a restaurant because the restaurant, in part, has been demolished and no longer exists, its core having been demolished, and that by the DA proceedings the applicant seeks consent to a different restaurant than was approved in 1988. I find, on the basis of the evidence before me, that the restaurant shown in the plans which were approved in the 1988 consent, has been demolished, at least in part. The respondent also submitted that the whole use to which the property is put is for wedding functions that also happen to make use of the accommodation, and that the gallery, which has been subsumed into the expanded restaurant, no longer exists. On the evidence before me, I find that to be the case.
11. The respondent disputed the applicant's interpretation of [7] of the Noakes affidavit. I accept that read fairly, in context, Mr Noakes would not be understood to be expressing no concern about the continued use of the property as a restaurant. The respondent submitted that there had been no compromise on the applicant's part; no offer to have fewer events, to provide to Council information about the numbers attending events, about the use of liquor or the amplification of music. It maintained its concerns in relation to health, safety, equitable access and loss of life.
12. The respondent also rejected the applicant's submissions concerning delay on its part, referring to the time taken by the applicant to lodge the DA appeal, to take steps to expedite the hearing of the DA appeal, and to bring the DCO proceedings before the Court. It submitted that the applicant had failed to manage the risk of enforcement action by Council in relation to existing bookings since the DCO was given on 19 August 2022. An option available to the respondent to manage risk in relation to existing bookings would have been to seek temporary use of the property as a 'function centre' in the RU2 Rural Landscape zone pursuant to the Tweed LEP 2014: by analogy (albeit in Class 4 proceedings): Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197.

The respondent's concerns in relation to compliance items identified in the Coastline Building Assessment Compliance report

1. I accept that the applicant has provided documentation to evidence some implementation of the following compliance items identified in the Coastline Building Assessment Compliance report: 1. BCA cl B1.2 structural drawings and certification: Mr Spedding exhibited to his affidavit the Structural Engineering Inspection report prepared by Globe Consulting Pty Ltd dated 19 July 2022; 2. BCA cl E1.4 fire hose reels: at the hearing, the applicant tendered a "Certificate of Inspection & Maintenance Annual Condition Report" provided by Firecom Australia dated 15 December 2022 for fire hose reels; 3. BCA cl E4.1-4.8 exit and emergency lighting: Mr Spedding exhibited to his affidavit a "Certificate of Compliance Emergency Escape Lighting & Exit Signs" provided by Link Electrix dated 18 February 2022.
2. Mr Spedding said in his affidavit that the following compliance items have been implemented, although no documentary evidence was provided in relation to their implementation or certification: 1. BCA cl B1.4 termite resistance: Mr Spedding said that "regular inspections and spraying in and around the building to manage termites" has been implemented; 2. BCA cl D2.13 stairs and D3.3 parts of buildings to be accessible: Mr Spedding said that "a performance solution has been implemented in relation to" both the front entrance stairs and the internal stairs between dining and kitchen. He said that the internal stairs between the dining levels have been chained off from the public as per the report's recommendation; 3. BCA cl D2.14 landings: Mr Spedding said that "on or about November 2022, a non-slip finish was installed to the stairs and ramps (including nosings and landings) to achieve a slip resistance as required"; 4. BCA cl D2.20 swinging doors: Mr Spedding said that "exit signage has been installed above doors that open outward in the direction of egress"; 5. BCA cl D3.3 parts of buildings to be accessible: Mr Spedding says that "a performance solution has been implemented in relation to the step ramp in the dining room between levels"; and 6. BCA cl F4.4 artificial lighting: Mr Spedding says that "on or about August 2022 a report was issued confirming lighting complies with AS1680.0 and Section J Part J6 and J8". Any such report was not in evidence.
3. Mr Spedding confirmed that the following compliance items are yet to be implemented: 1. BCA cl D2.15 threshold ramps to be installed; 2. BCA cl D2.21 operation of latch: locks on all exit doors to be removed; 3. BCA cl D3.3 parts of buildings to be accessible: rebuilding of the ramp to be installed upon approval of the DA; new handrails also to be installed on each side of the stairs, as well as the external front main entrance stairs; 4. BCA cl D3.5 accessible carparking spaces: while Mr Spedding says that a person with disabilities car parking space and path route have been "identified", he also says that the car parking space is still to be marked and signed; 5. BCA cl E1.3 fire hydrant system: a design certificate is to be provided for the hydrant system, or alternatively, a fire engineer to review fire compartmentation plan; and 6. BCA cl F1.12 subfloor ventilation: the applicant is to provide a drawing outlining complying ventilation provided to the subfloor of the building.
4. Together with the compliance items which Mr Spedding says are yet to be implemented, an analysis of the evidence suggests that the following have not been addressed: 1. BCA cl D1.10 Discharge from exits. 2. BCA cl D2.16 Balustrades. 3. BCA cl D3.7 Hearing augmentation.
5. Notwithstanding the steps taken to comply with the items in the Coastline Building Assessment Compliance report, I find that there remain significant outstanding concerns in relation to the applicant's compliance with the requirements of the BCA.

Nature of Council's concerns/risk management

1. There is also evidence, which I accept, that the applicant has been on notice since at least 9 December 2020 when the Show Cause notice was issued of Council's concerns in relation to the use of the property for weddings. As set out above at [57]: all 15 bookings were made after the Show Cause notice was issued on 9 December 2020; all 15 were made after Council's lengthy response of 24 February 2021 to the applicant's letter of 29 January 2021; all 15 were made after Ms Fobian's communication of 19 April 2021 and that of 7 May 2021 where it was "strongly suggested that the site is not used at all until approval is granted. Reason being, is that Council has some serious concerns with the outstanding building works"; and three were made after Council gave notice on 6 July 2022 of the proposed DCO.
2. I accept that no bookings for wedding events/functions appear to have been accepted since the DCO was given on 19 August 2022. However, the applicant received Ms Fobian's communication of 7 May 2021 in which it was "strongly suggested that the site is not used at all until approval is granted". All fifteen bookings were made after the receipt of the Show Cause notice. Three were made after Council gave notice of the proposed DCO.
3. I accept the respondent's submission in relation to risk management that negative publicity should have been considered before 23 February 2023. I also accept the respondent's submission that by declining to accede to the stay motion in the terms sought by the applicant, the consequence is to expose the applicant to the risk of enforcement action.

Third parties/booked weddings

1. In Tegra (NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA 1 at [51], Preston CJ identified as a relevant factor in assessing the balance of convenience whether hardship might be inflicted by an interlocutory injunction upon an innocent third party. Although the motion before me is not one in which an interlocutory injunction is sought, prejudice to third parties is plainly a relevant factor in weighing the balance of convenience.
2. There is a difference between the parties as to whether the applicant disclosed to the respondent wedding bookings beyond March 2023. The Hall & Wilcox letter dated 26 September 2022 would tend to suggest this is the case. There is no evidence before the Court, other than the statement by Senior Counsel for the applicant that he was instructed that the bookings after March 2023 had been brought to the respondent's attention.
3. It is unnecessary for the purpose of this interlocutory application to determine whether or not to accept the submission of the applicant or respondent on this matter.
4. In light of the imminence of the booked March weddings, I consider that it is unlikely that the bookings could realistically be reallocated.
5. Accordingly, I will make an order staying the order in relation to the weddings booked at the property in March 2023.

A partial stay should be granted

1. I have determined that a partial stay of the DCO should be granted so that the six bookings for weddings in March 2023 can take place.

Orders

1. The Court orders that: 1. the development control order, given by the respondent to the applicant on 19 August 2022, being order numbered 1 under Schedule 5 to the Environmental Planning and Assessment Act 1979 (NSW) relating to land located at 47 Hindmarsh Road, Nunderi, NSW 2482, being Lot 3 in DP 582718 (the property) and requiring the applicant to stop using the property and/or any building on the property for the use of weddings and/or functions is partially stayed such that the property may be used for weddings and/or functions which had been booked for the following dates: 1. 3 March 2023; 2. 4 March 2023; 3. 10 March 2023; 4. 18 March 2023; 5. 24 March 2023; and 6. 31 March 2023. 1. Costs of the notice of motion are reserved.

Amendments 27 February 2023 - Typographical error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2023