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Camilleri v Penrith City Council [2024] NSWLEC 1192 (18 April 2024)

Last Updated: 18 April 2024

JUDGMENT

COMMISSIONER:

1. This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (DC21/0523 dated 14 February 2023) issued by the respondent under s 9.34 and Pt 1 of Sch 5 of the EPA Act (DCO) to the first and second applicant, requiring specified restoration works to be carried out on land identified as Lot 4 in Deposited Plan 246865, known as 12-18 Judd Street, Berkshire Park (Subject Land).
2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Subject Land is 2.029 hectares and zoned RU4 Primary Production Small Lots under the Penrith Local Environmental Plan 2010 (PLEP).
4. The first and second applicant are the registered proprietors of the Subject Land.
5. It was agreed that the topography of the Subject Land and its surrounds meant that stormwater naturally flowed overland in a northerly direction across the Subject Land onto neighbouring property, 10 Judd Street, Berkshire Park (10 Judd Street) and beyond.
6. There is a long history of various enforcement orders being issued by the respondent to the applicants in connection with the Subject Land under both the EPA Act and Local Government Act 1993 (LG Act) relating to the control of stormwater overland flow across the Subject Land.
7. It was the respondent’s contention that various works carried out by the applicants over the preceding years had altered the natural flow of surface water across the Subject Land, leading to adverse impacts to neighbouring property, 10 Judd Street and the locality generally.
8. The respondent gave the applicants a Notice of Intention to Give an Order (EPA NISO) on 12 January 2023.
9. Over the next month or so, the applicant made various representations to the respondent in connection with the NISO which were considered by the respondent.
10. Notwithstanding those representations and discussions, the respondent issued the DCO (on the same terms as the EPA NISO) to the applicants on 14 February 2023 pursuant to s 9.34 and Item 10 “Restore Works Order” in Pt 1 of Sch 5 of the EPA Act.
11. The DCO as issued to the applicants was in the following terms:

1. Restore all land that has been disturbed by[sic] the unauthorised earthworks to the condition described in the Woolacotts Consulting Engineers Pty Ltd report dated 31 March 2020 and the associated Civil Works Plan to the report.

a) The areas where prior works are to be remediated are marked on Figure 1.

12. The relevant works described in the “Stormwater Overland Flow” report prepared by Woolacotts Consulting Engineers Pty Ltd dated 31 March 2020 (Woolacotts Report) (Exhibit 4, Tab 5) to which the DCO refers can be summarised as follows:

(1) local excavation and filling to create the swale shown on drawing C2 (Woolacotts Swale) at a location to the rear of the dwelling on the Subject Land; and

(2) installation of the subsoil drain and gravel trench shown on drawing C1 (Woolacotts Aggregate Trench) at a location along part of the northern boundary of the Subject Land and 10 Judd Street.

13. It was agreed between the parties that these works had previously been carried out by the first applicant in satisfaction of a previous order issued by the respondent under the EPA Act but had subsequently been removed (Removal Works). It was also agreed that the applicants had placed additional material at the boundary of 10 Judd Street approximately at the end point of the Woolacotts Swale, however this additional material had been removed by the date of the hearing (Fill Works). The Removal Works and Fill Works shall be collectively referred to as the 2022 Works.
14. One other order is directly relevant to this appeal and that is the “Order Number 12” issued by the respondent to the applicants on 30 October 2023 under the LG Act (LG Order). The LG Order relevantly required the applicants to carry out restorative works to the drainage swale in the front portion of the Subject Land to direct flows toward Judd Street. The LG Order is not the subject of this appeal, however, is relevant to the manner in which the parties have resolved the applicants’ appeal in respect of the DCO.
15. The applicants commenced Class 1 proceedings on 13 March 2023 in respect of the DCO, being within the time period specified in s 8.18(3) of the EPA Act.
16. The matter was listed for a conciliation conference on 1 August 2023. This conciliation was unsuccessful and the conciliation conference terminated on 22 August 2023.
17. The matter was subsequently listed for hearing on 25 and 26 March 2024.

The hearing

18. At the commencement of the hearing, the applicants confirmed that Mr Clement Camilleri, the first applicant, would represent both himself and the second applicant, Ms Rita Camilleri, being the registered proprietors of the Subject Land and the recipients of the DCO the subject of the appeal.
19. The Court attended a site view on the first day of the hearing accompanied by the parties. The Court also heard evidence from the owner of 10 Judd Street in Court regarding the owner’s opinion as to the effect that various works alleged to have been carried out on the Subject Property had had on 10 Judd Street.
20. On the second day of the hearing, the parties reached agreement on the terms of a modified development control order in relation to the Subject Land (Modified DCO). The Modified DCO is in the following terms:

(1) Undertake restorative works to the drainage swale shown in Drawing C2 (Stormwater Overland Flow Path Rectification) included as part of the Woolacott’s Overland Flow Report dated 31 March 2020 and attached to this Order as Annexure A (Drainage Swale Works).

(2) The Drainage Swale Works are to be undertaken so that the swale is to be approximately 55 metres long, approximately 3 metres wide, and an effective depth of 300mm as measured from the top of the spoil mound to the invert of the channel as shown in the cross section attached to this Order as Annexure B.

(3) The mound that exists between the garden beds and the northern boundary of the lot between chainages 93.75 and 102.89 as shown in Drawing C1 included as part of the Woolacott’s Overland Flow Report dated 31 March 2020 and attached to this Order as Annexure C is to be levelled to the existing level at chainage 102.89 in Drawing C1 (Mound Levelling Works).

(4) The Drainage Swale Works and the Mound Levelling Works are to be undertaken within 21 days from the date of the Order.

(5) On completion of the Drainage Swale Works and Mound Levelling Works, Penrith City Council’s Development Compliance Coordinator is to be contacted in writing and an inspection of the completed works is to be arranged and conducted.

(6) The Drainage Swale Works and the Mound Levelling Works are to be maintained in perpetuity in conjunction with the restorative works the subject of Local Government Act Order No. 12 dated 30 October 2023, and which is attached to this Order as Annexure D.

21. For the reasons that follow, I consider it appropriate to allow the appeal and make an order for the DCO to be modified in the manner agreed by the parties.

The role of the Court on appeal

22. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the LEC Act provides as follows:

39 Powers of Court on appeals

...

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

23. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, 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.

24. It is clear that the Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

Unauthorised works carried out

25. The DCO was issued pursuant to s 9.34 and Item 10 in Pt 1 of Sch 5 to the EPA Act. Column 1 of Item 10 provides that the recipient of an order can be required “to restore premises to the condition in which they were before unlawful building or other works occurred”. Column 2 of Item 10 provides that such an order can be issued in circumstances where “an unauthorised building has been the subject of a Demolish Works Order or unauthorised works have been carried out”. Column 3 of Item 10 provides that such an order can be issued to, relevantly, “the owner of the premises”.
26. The reasons provided for the issue of the order set out in the DCO relevantly provide that the 2022 Works involved various earthworks and filling works which required development consent under the PLEP and State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Conservation SEPP) and that no such development consent had been obtained.
27. It was further stated in the DCO that as the Subject Land had been identified as a “flood control lot”, the 2022 Works could not fall within the provisions of the State Environmental Planning Policy (Exempt and Complying development Codes) 2008 (Codes SEPP).
28. The applicants did not refute the respondent’s submission that the 2022 Works required development consent and were not exempt under the Codes SEPP. Rather, the applicants argued that the DCO was unfair in circumstances where, on its case:

(1) the natural topography of the Subject Land and its surrounds caused overland flows to pass from the Subject Land to 10 Judd Street;

(2) the 2022 Works were in response to actions taken on 10 Judd Street which purportedly thwarted efforts to control overland flow from the Subject Land;

(3) the Woolacotts Aggregate Trench required by the DCO (and originally installed by the applicants but later removed) was an ineffective solution to the overland flow issues affecting the Subject Land, 10 Judd Street and the locality; and

(4) the applicants had carried out the 2022 Works in consultation with, and under the direction of officers of the respondent.

29. On the basis of the submissions and evidence before the Court, I am satisfied that the 2022 Works required development consent for earthworks under cl 7.1 of the PLEP. I am also satisfied that no such development consent was obtained and the provisions of the Codes SEPP were not enlivened.
30. The requirements of Item 10 of Pt 1 of Sch 5 to the EPA Act are therefore met and I am satisfied that there was power for the DCO to be issued requiring restoration works, pursuant to s 9.34 of the EPA Act.

Agreement between the parties

31. Notwithstanding this, the parties have signed consent orders, which, if made by the Court, have the effect of modifying the DCO in the terms extracted above at [20] and summarised below:

(1) requiring the applicants to reinstate the Woolacotts Swale as required by the original DCO;

(2) not requiring the applicants to carry out the Woolacotts Aggregate Trench works required by the original DCO;

(3) requiring the applicants to carry out the Mound Levelling Works; and

(4) requiring the applicants to maintain in perpetuity the Woolacotts Swale, Mound Levelling Works and the restorative works the subject of the LG Order.

Consent orders

32. I am satisfied the DCO should be substituted for the Modified DCO on the basis that:

(1) The Court has a broad power to modify a development control order pursuant to s 8.18 of the EPA Act.

(2) In proposing the Modified DCO, the respondent is similarly relying on s 9.34 and Item 10 of Pt 1 of Sch 5 to the EPA Act in respect of unauthorised works carried out on the Subject Land.

(3) The evidence of Mr Masters, the stormwater expert for the respondent, was that the works required by the Modified DCO would appropriately address the stormwater overflow issues across the Subject Land onto 10 Judd Street and Judd Street more generally. The applicants did not call any expert evidence to substantiate or refute this opinion. I am satisfied from the evidence given by Mr Masters during the hearing that the terms of the Modified DCO are an appropriate response to the overland flow issues affecting the Subject Land and its surrounds following the 2022 Works (being “unauthorised works”) and will effectively “restore” the Subject Land to the condition it was in before the unauthorised works were carried out.

33. For completeness, I note that as the parties have proposed consent orders and I am satisfied that it is appropriate to make the proposed consent orders, it is not necessary for me to further consider the initial submissions made by the applicants as set out at [28].
34. For completeness, I confirm that I have had regard to the evidence given by the owner of 10 Judd Street during the hearing, and remain satisfied that the DCO should be substituted for the Modified DCO for the reasons set out above at [32].
35. The development control order now proposed to be substituted by the Court is therefore in accordance with s 9.34 and Pt 1 of Sch 5 to the EPA Act. I therefore consider it appropriate to exercise the Court’s power to modify the DCO in accordance with the consent orders and pursuant to s 8.18(4)(b) of the EPA Act.
36. The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order dated 14 February 2023 is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in accordance with the Development Control Order at Annexure A.

N Targett

Acting Commissioner of the Court

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Annexure A