Barbara St Pty Ltd v Fairfield City Council (No 2)

[2021] NSWLEC 1208

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barbara St Pty Ltd v Fairfield City Council (No 2) [2021] NSWLEC 1208
Hearing dates:	1-2 February 2021
Date of orders:	29 April 2021
Decision date:	29 April 2021
Jurisdiction:	Class 1
Before:	Gray C and Bradbury AC
Decision:	See final orders at [7] below
Catchwords:	APPEAL – development control order – unauthorised development – fire safety – order likely to make residents homeless
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Barbara St Pty Ltd v Fairfield City Council [2021] NSWLEC 1145
Category:	Principal judgment
Parties:	Barbara St Pty Ltd (Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: F Berglund (Applicant) S Shneider (Solicitor) (Respondent) Solicitors: Paramonte Legal (Applicant) Houston Dearn O’Connor (Respondent)
File Number(s):	2020/70514
Publication restriction:	No

Judgment

1. COMMISSIONERS: In a judgment given on 23 March 2021, Barbara St Pty Ltd v Fairfield City Council[2021] NSWLEC 1145, we gave our decision on two appeals concerning a building at 35 Barbara Street, Fairfield. In one appeal, the proceedings were finalised by the grant of development consent for the conversion of the building to a boarding house (proceedings 2020/264873). The other (proceedings 2020/70514) is an appeal against a development control order (“order appeal”), in which directions were made for the filing of certain evidence and any submissions concerning the final orders. The terms of those directions are set out at [80] of our judgment of 23 March 2021.

2. In the order appeal, we determined that the issue of a stop use order is appropriate for 7 of the residential units, which will require the vacation of the units and is likely to have the effect of making the affected residents homeless. In such circumstances, cl 2(1) of Sch 5 of the Environmental Planning and Assessment Act 1979 (“the Act”) imposes an obligation on the Court, in exercising the functions of the relevant enforcement authority to “consider whether the resident is able to arrange satisfactory alternative accommodation in the locality”. At the time of our judgment on 23 March 2021, there was insufficient evidence before the Court to enable us to consider this point. Accordingly, the directions at [80] of the judgment required the Council to file evidence addressing cl 2(1) of Sch 5 of the Act.

3. In accordance with the terms of those directions, the Council filed the affidavit of Mr Thomas Donohoe sworn 6 April 2021. The affidavit of Mr Donohoe demonstrates that there is a wide range of apartments available at different rental rates, some of which are managed by the same real estate agent who manages the units the subject of the order. There is now sufficient evidence for the Court to be satisfied that any residents who are required to vacate their homes as a result of a stop use order will be able to arrange satisfactory alternative accommodation in the locality, if required.

4. The affidavit of Mr Donohoe also establishes that the numbering of the units has changed since the hearing on 1-2 February 2021. The unit numbers referred to as Units 2, 3, 4, 5, 6, 7 and 11 in our judgment, which are shown in Figures 1, 2 and 3 of our judgment of 23 March 2021, have now been renumbered as Units 2, 2A, 3A, 4A, 3, 4 and 7A respectively. This is shown in Figures 1, 2 and 3 below.

5. In [76] of our judgment of 23 March 2021, we set out the final orders that we proposed to make on the order appeal in the event that we were able to consider the matters required by cl 2(1) of Sch 5 of the Act. Whilst the directions made on the order appeal gave an opportunity to each of the Council and the applicant to file submissions concerning the final orders, neither the Council nor the applicant chose to file submissions.

6. Accordingly, the final orders of the Court on the order appeal are as follows.

7. The Court orders that:

1. The general order 1 issued by the Council on 5 February 2020 is modified in accordance with order (2) below.

2. Barbara St Pty Ltd is to stop the use of Units 2, 2A, 3A, 4A, 3, 4 and 7A (formerly known as Units 2, 3, 4, 5, 6, 7 and 11) located at 35 Barbara Street, Fairfield, within 14 days of the date that this order takes effect.

3. Order (2) is stayed for a period of 6 weeks.

4. Order (2) is revoked in the event that:

1. A building information certificate is issued under Division 6.7 of Environmental Planning and Assessment Act 1979, in relation to the following matters:

1. All walls at the premises that are located between dwellings and that have been constructed without a prior approval between dwellings complies with the requisite fire resistance requirements of the BCA; and

2. All separating floors constructed without approval over former stair voids between levels 1 and 2 meet all structural and fire resistance requirements of the BCA;

and

2. A development consent for the use of Units 2, 2A, 3A, 4A, 3, 4 and 7A (formerly known as Units 2, 3, 4, 5, 6, 7 and 11) is granted.

5. The parties have liberty, to be exercised by way of notice of motion with a supporting affidavit, to apply to vary the period of the stay granted by order (3).

..………………………..

J Gray

Commissioner of the Court

..………………………..

A Bradbury

Acting Commissioner of the Court

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Decision last updated: 29 April 2021