Cai v Fairfield City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cai v Fairfield City Council [2021] NSWLEC 1657

Hearing dates:

15 October 2021

Date of orders:

28 October 2021

Decision date:

28 October 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

See orders at [41]

Catchwords:

APPEAL – development control order – demolish works order – building erected without development consent – procedural fairness – order modified

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 9.34, 8.18

Fairfield Local Environmental Plan 2013

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
A Cai (Authorised Agent) (Applicants)
S Shneider (Solicitor) (Respondent)

Solicitors:
Houston Dearn O’Connor (Respondent)

File Number(s):

2021/118595

Publication restriction:

Nil

Judgment

1. COMMISSIONER: In the course of investigating a complaint in relation to activities on a neighbouring property, an investigation officer employed by the Fairfield City Council (Council) observed what appeared to him to be an unauthorised dwelling (Building) in the rear yard of the Applicants’ property at Lot 9 DP 216835 known as 11 Wadds Avenue Cabramatta (Land). Subsequent investigations confirmed the absence of any development consent for the Building.

2. On 6 April 2021 the Council gave each of the Applicants a development control order (Order) in identical terms which required the demolition of the Building, the disconnection of all associated plumbing and electrical works and the removal of the concrete slab on which the Building had been erected. The Applicants, who are the owners of the Land, have appealed against the Order pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. For the reasons set out in this judgment I have decided to modify the Order to extend the time for compliance to allow a reasonable time for the Applicants to obtain a building information certificate pursuant to Div 6.7 of Part 6 of the EPA Act in relation to the Building and development consent to authorise the future use of the Building.

Background

4. The Order was given pursuant to s 9.34(1) of the EPA Act, which allows an Order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. Item 3 in the table allows an Order to be given requiring the demolition or removal of a building where a building requiring planning approval is erected without approval. Such an order can be given to the owner of the building.

5. On 22 March 2021, prior to giving the Order, the Council gave each of the Applicants notice of its intention to give the order. A copy of that notice is attached to the Class 1 Application (Ex A). In accordance with cl 8 of Sch 5 of the EPA Act, the notice included a statement of the Council’s intention to give the order, incorporated a copy of the draft development control order (which included the terms of the proposed order), indicated the period proposed…