Background
Andrew Simmons Pty Limited owned 9 Gerald Street, Marrickville, a commercial building. Inner West Council issued a development control order on 26 September 2025 requiring specified measures to ensure or promote adequate fire safety. The company appealed under s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW).
The parties later agreed that the building had been an empty warehouse since about April 2026 and was a Class 8 building under the National Construction Code 2022. The Council had previously regarded it as a Class 9B building. After an earlier conciliation process failed, the parties obtained a joint fire-engineering report and reached agreement before the hearing.
The Court’s Holding
Commissioner Targett upheld the appeal and modified the Council’s development control order under s 8.18(4) of the Act, in accordance with the agreed instrument at Annexure A. The modified order amended the fire-safety work required and extended the compliance period.
The Court held that it had power to make the agreed modifications and that the agreed order was capable of being issued as a fire safety order under Item 1 of Part 2 of Schedule 5. It required specified work to promote adequate fire safety, served the statutory fire-prevention and occupant-safety purposes, and was directed to the owner of the land. Having found the agreement was a decision the Court could make in the proper exercise of its functions, the Court was required to dispose of the proceedings accordingly under s 34(3) of the Land and Environment Court Act 1979 (NSW).
Key Takeaways
- The Court may modify, rather than revoke, a development control order on appeal.
- A negotiated fire safety order can be approved where it falls within the statutory power to issue such an order.
- The Court did not make a merits assessment of the parties’ original dispute when giving effect to their conciliated agreement.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to a lawful agreement reached in a conciliation conference. It also confirms the breadth of the Court’s power under s 8.18(4) to tailor a development control order to an agreed fire-safety outcome.