Cai v Fairfield City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cai v Fairfield City Council [2022] NSWLEC 58

Hearing dates:

4 April 2022

Date of orders:

13 May 2022

Decision date:

13 May 2022

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The appellants are to pay the respondent’s costs of the appeal as agreed or assessed.

Catchwords:

APPEAL – appeal against Commissioner’s decision –building erected without consent – demolish works order – Commissioner modified order – whether order given in breach of required process – whether order justified on the evidence – whether Commissioner’s modification of order involved error of law

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.2, 8.18, 9.34, Sch 5

Fairfield Local Environmental Plan 2013

Fairfield City-wide Development Control Plan 2013 s 5B.2.5

Land and Environment Court Act 1979 s 56A

Cases Cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Council of the City of Sydney v Vision Land Glebe Pty Ltd (2019) 243 LGERA 25; [2019] NSWLEC 60

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8

Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138

Randwick Municipal Council v Manousaki (1988) 66 LGRA 330

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Category:

Principal judgment

Parties:

Wei Cai (First appellant)
Xi Ma (Second appellant)
Fairfield City Council (Respondent)

Representation:

Counsel:
E Cai (Authorised Agent) (Appellants)
S Schneider (Solicitor) (Respondent)

Solicitors:
Houston Dearn O’Connor (Respondent)

File Number(s):

2021/333619

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 1

Citation:

[2021] NSWLEC 1657

Date of Decision:

28 October 2021

Before:

Bradbury AC

File Number(s):

2021/118595

Judgment

1. Mr Wei Cai and Mrs Xi Ma (the appellants) erected and are using a building in the rear yard of their property at 11 Wadds Avenue, Cabramatta. The erection and use of the building was and is unlawful. Development consent was required to be obtained but was not obtained for the erection and use of the building. The appellants thereby have breached and continue to breach s 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

2. Fairfield City Council (the Council) gave a development control order under s 9.34(1)(a) and Part 1 of Schedule 5 of the EPA Act to the appellants. The order was a Demolish Works Order under Item 3 of the Table in Part 1 of Schedule 5. The Demolish Works Order was given on 6 April 2021 to each of the appellants and required them to demolish the building by 7 May 2021. The reason for the order was that the erection of the building required development consent but the building was erected without obtaining development consent. The Council did not give the appellants a Stop Use Order under Item 1 of…