Sydney Metal Recyclers Pty Ltd v Sutherland Shire Council

File Number(s): 2024/435101

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development control order issued by Sutherland Shire Council on 28 October 2024 (the order) concerning premises at 452-456 The Boulevarde, Kirrawee. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. The order is a compliance order, issued pursuant to Item 11 of Pt 1 of Sch 5. It requires the applicant to comply with conditions of consent for development consent DA14/1398 for the alterations and additions to an existing industrial building and use as a waste recycling and management centre. The applicant, Sydney Metal Recyclers Pty Ltd, appeals against the order pursuant to s 8.18 of the EPA Act. The final orders on the appeal, which substitute the order with a new compliance order, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was held on 9 July 2025. I presided over the conciliation conference.

3. Following 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 final signed agreement was filed on 23 July 2025. The signed agreement is supported by a Joint Jurisdictional Statement by the parties. The agreement is for the order to be substituted with a new order, which similarly is a compliance order pursuant to Item 11 of Pt 1 of Sch 5 of the EPA Act.

4. To make orders in accordance with the agreement, I must be satisfied that the decision to make orders to substitute the order with a new order in the agreed terms is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).

5. The substituted order remains an order requiring compliance with the conditions of consent for the development consent DA14/1398. It also provides for interim works to reduce the immediate impacts of works that have been carried out in contravention of the development consent, with scope to obtain another development consent for new works. Item 11 of Pt 1 of Sch 5 to the EPA Act allows a development control order to be issued as a compliance order where a planning approval, which includes a development consent, has not been complied with. The parties agree that works have occurred at the premises in contravention of the development consent DA14/1398. Therefore, there is power to issue the order.

6. In addition, s 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are 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.

7. I am satisfied that the decision to make orders to substitute the order with a new compliance order in the terms agreed to by the parties is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(c) of the EPA Act gives the Court the power, on the hearing of the appeal, to substitute the development control order with any other order that the respondent could have given. The new, substituted order (at Annexure A) is a compliance order that the respondent could have given, it being an order pursuant to s 9.34 and Sch 5 of the EPA Act.

8. Having reached the state of satisfaction that the decision agreed upon is a decision that the Court could make 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)).

9. In making order to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the issues that were originally in dispute between the parties.

10. The Court orders that:

11. The appeal is upheld.

12. The Respondent’s Development Control Order dated 28 October 2024 is substituted in accordance with s 8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979 (NSW) in the terms set out in the order annexed and marked as Annexure A.

J Gray

Commissioner of the Court

Annexure A (1.08 MB, pdf)

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