Background
Elias and Jamal Georges are the owners of a residential property at 26 Rita Street, Merrylands, New South Wales. On 19 December 2025, Cumberland Council issued Development Control Order No. ON2025/1054 against them, comprising three combined orders: a Stop Use Order (No. 1), a Demolish Works Order (No. 3), and a Restore Works Order (No. 10). The orders were triggered by building works carried out at the site that rendered it capable of use as a dual occupancy development — a purpose for which no planning approval had been obtained. The works on the first floor were erected without the required consent, and the ground floor was also subject to restoration requirements under the original order.
The applicants lodged an appeal in the Land and Environment Court on 15 January 2026, within the 28-day statutory window under s 8.18(3) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Court convened a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW), which was held on 11 June 2026 and presided over by Commissioner Espinosa.
At the conciliation conference, the parties reached agreement on modified terms for the order. The agreed position was that the time for compliance would be extended, and that any requirement to demolish works on the ground floor or restore the ground floor would be removed. The parties jointly sought the Court’s exercise of its jurisdiction under s 8.18(4)(b) of the EPA Act to issue the order in its modified form.
The Court’s Holding
Commissioner Espinosa upheld the appeal and modified the Development Control Order in accordance with the parties’ agreement. The Commissioner confirmed that all jurisdictional prerequisites under the EPA Act and the LEC Act were satisfied: the order had been lawfully served, the appeal was filed within time, the site was not a heritage item, the Council had not formed a view that the order would render anyone homeless, the order included required reasons and appeal information, and the combined order format was authorised under Sch 5 Pt 4 cl 38 of the EPA Act.
The Commissioner was satisfied that the parties’ agreed decision was one the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Accordingly, the Commissioner was obliged to dispose of the proceedings in accordance with that agreement, without conducting a merit assessment of the underlying disputes. The modified order retains the Stop Use, Demolish Works, and Restore Works orders but limits the demolition and restoration requirements to the first-floor works and extends compliance timeframes.
Key Takeaways
- A development control order may be challenged by appeal to the Land and Environment Court, which can modify the order under s 8.18(4)(b) of the EPA Act where the parties reach agreement at conciliation.
- Under s 34(3) of the LEC Act, once a conciliation conference produces an agreement that falls within the Court’s proper jurisdiction, the Commissioner is required to give effect to that agreement without independently assessing the merits.
- Carrying out building works that enable dual occupancy use without planning approval exposes landowners to combined stop use, demolish works, and restore works orders — but the scope of those orders can be negotiated and modified on appeal.
- Jurisdictional prerequisites — including lawful service, timely filing, and satisfaction of EPA Act Schedule 5 conditions — must all be established before the Court can exercise its appellate function to modify a development control order.
Why It Matters
This decision illustrates the practical operation of the conciliation process in development control order appeals before the Land and Environment Court. It demonstrates that landowners facing enforcement action for unauthorised works have a meaningful opportunity to negotiate the scope and timing of compliance obligations, potentially avoiding the most onerous requirements — here, the removal of ground-floor demolition and restoration obligations — without the cost and uncertainty of a contested hearing.
For practitioners advising clients subject to development control orders, the case reinforces the importance of appealing within the 28-day statutory window and engaging constructively in the Court’s conciliation process. It also highlights that councils issuing orders in respect of potentially occupied premises should turn their minds to the Schedule 5 homeless-persons consideration at the time of issuing the order, as this formed part of the jurisdictional checklist reviewed by the Court.