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[2025] NSWLEC 1685
General information, not legal advice.
Land and Environment Court (NSW)
2025-09-23
Gray C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tao Asset Investment Pty Ltd v City of Canada Bay Council [2025] NSWLEC 1685
Hearing dates: Conciliation conference 17 September 2025
Date of orders: 23 September 2025
Decision date: 23 September 2025
Jurisdiction: Class 1
Before: Gray C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) In accordance with the power set out at s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979 (NSW), the development control order given to Tao Asset Investment Pty Ltd by City of Canada Bay Council on 5 June 2025, Reference ON2025/0050, has been sufficiently complied with.
Catchwords: APPEAL – development control order – stop use order – order complied with – agreement reached for finding that order substantially complied with
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 8.18, 9.34, Pt 1 Sch 5
Land and Environment Court Act 1979 (NSW), s 34
Cases Cited: McCudden v Cowra Shire Council (2016) 216 LGERA 219; [2016] NSWLEC 14
Category: Principal judgment
Parties: Tao Asset Investment Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)
Representation: Counsel:
M Harker (Applicant)
S Shneider (Solicitor) (Respondent)
Solicitors:
Dong and Partners (Applicant)
Houston Dearn O’Connor (Respondent)
File Number(s): 2025/240742
Publication restriction: No
COMMISSIONER: This appeal concerns a development control order issued by City of Canada Bay Council on 5 June 2025 (the order). 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 stop use order, issued pursuant to Item 1 of Pt 1 of Sch 5. It requires the applicant to cease use of premises at 10/24 Walker Street, Rhodes, for the purpose of a real estate office. Item 1 in the table allows a development control order to be issued as a stop use order where premises are being used for a use that requires a planning approval, and where no planning approval has been obtained. The applicant appeals against the order pursuant to s 8.18 of the EPA Act. Its position is that the use was exempt as a home business. However, the parties reached agreement at a conciliation conference. The final orders on the appeal, which is a finding that the order is substantially complied with, are made as a result of that agreement.
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 17 September 2025. I presided over the conciliation conference.
At the commencement of the conciliation conference, a site inspection took place. It was apparent from what could be observed on the site, that the order has been substantially complied with. There is no real estate office use currently occurring at the premises. As a result, 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 signed agreement was filed on the same date. The agreement is for the Court to make a finding that the development control order is sufficiently complied with. The agreement is supported by a jurisdictional statement.
To make orders in accordance with the agreement, I must be satisfied that the decision agreed upon 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).
Section 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.
I am satisfied that the decision to make the finding 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)(d) of the EPA Act gives the Court the power, on the hearing of the appeal, to find that the development control order is sufficiently complied with. Based on the observations that were made at the site inspection that formed part of the conciliation conference, it is open for such a finding to be made.
In making orders 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, including issues around the validity of the order, or the questions of whether the use that was being carried out met the definition of ‘home business’ or was otherwise an exempt form of development. The Court’s power pursuant to s 8.18(4) is so broad that it has the consequence that any issue concerning the validity of the order as issued by the Council (if such an issue arises) may be “superseded or overcome by the appeal process” (see McCudden v Cowra Shire Council (2016) 216 LGERA 219; [2016] NSWLEC 14 at [116]).
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 on the appeal, 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)).
The Court orders that:
The appeal is upheld.
In accordance with the power set out at s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979 (NSW), the development control order given to Tao Asset Investment Pty Ltd by City of Canada Bay Council on 5 June 2025, Reference ON2025/0050, has been sufficiently complied with.
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Corrected formatting by removing extra spaces.
Tao Asset Investment Pty Ltd
City of Canada Bay Council [2025] NSWLEC 1685
(2016) 216 LGERA 219