Background
Defeng Qi and Yue Liu appealed a development control order issued by Northern Beaches Council concerning their property at 10 Manor Road, Ingleside. The land is zoned RU2 Rural Landscape under the Pittwater Local Environmental Plan 2014.
The order required removal of a red/brown shipping container and restoration of the property following unauthorised earthworks. The Council alleged that fill had been deposited, an accessway towards Kings Road was being created, and the shipping container had been placed on the land without the required development consent or assessment of environmental and heritage effects.
The Court’s Holding
Following a conciliation conference conducted under s 34 of the Land and Environment Court Act 1979 (NSW), the parties agreed that the development control order should be modified. Commissioner Targett held that the agreed result was one the Court could make in the proper exercise of its functions and was therefore required to dispose of the proceedings in accordance with it.
The Court upheld the appeal and modified Development Control Order EPA2025/0204 in accordance with the parties’ agreed modified order. The modified order extends the compliance timetable for removal of the shipping container and gives the applicants further time to seek consent for DA2026/0427, which includes a proposal to retain the fill. If consent is not obtained within the specified period, the fill must be removed. The applicants may apply for a further extension where they have taken reasonable compliance steps or steps to obtain consent.
Key Takeaways
- The Court may modify a development control order on appeal under s 8.18(4) of the Environmental Planning and Assessment Act 1979 (NSW).
- Under s 34(3) of the Land and Environment Court Act, the Court must give effect to a conciliated agreement if it could properly make that decision.
- The Commissioner made no merits assessment of the planning issues originally disputed by the parties.
Why It Matters
The decision illustrates how a Class 1 appeal can resolve enforcement action through conciliation, including by preserving a pathway for an owner to seek retrospective or other development consent while retaining a deadline for remedial action if consent is refused or not obtained.
It also confirms that agreed modifications must remain within the statutory powers for development control orders; party agreement alone is not enough.