Background
Canplay Pty Ltd owns property at 217A Beach Road, Denhams Beach, New South Wales, where it constructed coastal cliff retaining walls and beach access stairs and pathways. Eurobodalla Shire Council issued a Development Control Order (DCO ENF0027/25) on 1 August 2025 under the Environmental Planning and Assessment Act 1979 (NSW) requiring demolition of those works — including the two coastal cliff retaining walls and various beach access structures — on the basis that the works had been carried out without the required development consent. Canplay also applied to the Council for two Building Information Certificates (BICs): one for the beach access stairs and pathway (BIC C0104/25) and one for the coastal cliff retaining walls (BIC C0105/25), both lodged on 12 June 2025. The Council did not issue those certificates.
Canplay lodged three Class 1 appeals in the Land and Environment Court: appeal 2025/330871 against the demolish works order, and appeals 2025/330872 and 2025/330873 challenging the refusal of the two BIC applications. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), presided over by Commissioner Porter. That conference was held on 18 March 2026 and was adjourned on multiple occasions before the parties reached agreement on 12 June 2026.
The agreed resolution involved the Court substituting a narrowed demolition order in place of the original DCO and directing the Council to issue both building information certificates. Owner’s consent for both BICs was provided, including consent from the adjoining owner at 217 Beach Road who shares an access easement over part of the stairway works.
The Court’s Holding
Commissioner Porter upheld all three appeals. In relation to the demolition order, the Court substituted the original DCO with a narrowed order confined to the landing and deck works in the southeast corner of the site — works that required but did not obtain development consent — in place of the broader order requiring removal of all retaining walls and beach access works. The Commissioner was satisfied that the substituted order met the requirements of Item 3 of Schedule 5 and ss 8.18(4)(a) and (c) of the EPA Act.
On the two BIC appeals, the Commissioner accepted that the jurisdictional prerequisites under Division 6.7 and ss 6.26 and 8.25 of the EPA Act had been met, including that a partial BIC could be directed for the stairs and pathway. The Court accordingly directed Eurobodalla Shire Council to issue a Building Information Certificate for the beach access stairs and pathway (excluding a hatched area on the survey plan) and a separate Building Information Certificate for the coastal cliff retaining walls.
The Commissioner noted that under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court is required to dispose of proceedings in accordance with the parties’ agreed decision where that decision is one the Court could have made in the proper exercise of its functions. Having verified the jurisdictional prerequisites, the Commissioner was satisfied that condition was met and gave effect to the agreement without making any independent merit assessment of the underlying planning dispute.
Key Takeaways
- Where parties to a Class 1 appeal reach agreement at a conciliation conference, the Land and Environment Court must give effect to that agreement under s 34(3) of the Land and Environment Court Act 1979 (NSW), provided the agreed decision falls within the Court’s jurisdiction — no independent merit review is required.
- The Court has power under s 8.18(4) of the EPA Act to substitute a development control order with a narrower order, reducing the scope of required demolition works rather than simply affirming or setting aside the original order.
- A partial Building Information Certificate can be directed under s 6.26(1) of the EPA Act, enabling certification of only those parts of completed works that satisfy the relevant criteria while excluding non-compliant portions.
- Where coastal protection and beach access structures are built without development consent, enforcement action by council may be moderated through negotiated agreement and substituted orders that reflect the actual planning merits of specific components of the works.
Why It Matters
This decision illustrates the practical utility of the Land and Environment Court’s conciliation process for resolving enforcement disputes involving coastal development. By reaching agreement on a narrowed demolition order and directing the issue of building information certificates, the parties avoided a contested hearing on complex factual and planning questions concerning coastal cliff protection works — a category of development frequently subject to competing regulatory pressures between coastal hazard management and development control.
The case also serves as a reminder to landowners and practitioners that development control orders issued under the EPA Act are not necessarily all-or-nothing outcomes. The Court’s power to substitute a DCO, combined with the ability to direct partial building information certificates, provides flexibility in enforcement resolution that can accommodate situations where some completed works are capable of certification while others remain non-compliant.