Dong Thanh Vu v Fairfield City Council

[2017] NSWLEC 1390

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dong Thanh Vu v Fairfield City Council [2017] NSWLEC 1390
Hearing dates:	18 July 2017
Date of orders:	18 July 2017
Decision date:	20 July 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	1. Appeal number 333572 of 2016 is upheld. 2. Pursuant to s 121 ZK(4)(b) of the Environmental Planning and Assessment Act 1979, Schedule 1 of the Order of 11 October 2016 issued by the Fairfield City Council the subject of this appeal is varied by deleting each reference to the words “Within a period of THIRTY (30) DAYS from the date of the Order” in each of orders 1,2 and 12 and inserting the words “By midnight on 18 October 2017”. 3. Exhibit 1 is returned.
Catchwords:	Consent orders - Appeal against s.121B order – garage not to be used for residential purposes – extension of time to comply with Order
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 76A, 121B, 121ZK Fairfield City Wide DCP Fairfield Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Dong Thang Vu (Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: Mr Van Huang (Agent for Applicant) Mr Thompson (solicitor) (Respondent) Solicitors: Self-represented (Applicant) Ritchie & Castellan Solicitors (Respondent)
File Number(s):	2016/333572
Publication restriction:	No

Judgment

1. This is an appeal brought under s 121ZK of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant, Mr Dong Thanh Vu, against orders dated 11 October 2016 made under s 121B of the EPA Act by the Respondent Council, Fairfield City Council.

The Orders the Subject of the Appeal

2. The orders the subject of the Appeal require the Applicant to comply with the condition 11 of Building Application 3299/81 within 30 days of the date of the Order. Condition 11 is in the following terms:

The garage shall not be used or occupied for industrial, commercial or residential purposes.

3. Order 1 requires the cessation of the garage for human habitation. Order 2, requires the removal and demolition of unauthorised alterations and additions made to the existing garage including the bathroom and storeroom attached to the rear of the building. The final order (Order 12) requires the premises to be restored to the condition it was in before the work was unlawfully carried out.

Background to the Making of the Orders

4. The Applicant, together with joint tenant Mrs Thi Le Thi Vu, owns premises at 29 Landon Street, Fairfield East, described as Lot 21, Sec G, DP 4136 (the Site). The Site is located in the R2 Low Density Residential zone under the Fairfield LEP 2013 (FLEP). That zoning permits with consent dwelling houses, dual occupancies and secondary dwellings.

5. A Building Application was made and granted in 1981 (BA 3299/81), imposing conditions with respect to use of a garage on the Site (the Garage).

6. The sequence of events with respect to this matter are set out in the Respondent’s Chronology of Events: Ex 2. The first inspection by a Council officer on 26 September 2014 disclosed the following:

Mr R. Sinai, building surveyor compliance, attended premises and noted that the garage had been converted into a secondary dwelling consisting of 3 bedrooms, an ensuite connected to the main bedroom, a combined kitchen and living room and an attached unauthorised addition containing a combined laundry and bathroom and a separate storeroom.

The existing carport on the premises had been converted into a garage and a large shade cloth structure erected between the house and the garage/unauthorised secondary dwelling.

On the western and eastern sides of the house, carports had been erected: Ex 2, p. 1.

7. A Notice of Council’s Proposal to serve an Order dated 13 October 2014 was served, which was followed by an Order 1, 2 and 12 under s. 121B of the EPA Act on 18 November, 2014. Several extensions of time were granted by the Council to the Applicant to allow him to comply with the Orders. A penalty infringement notice was subsequently issued on 10 June 2015 for failure to comply.

8. Compliance was not forthcoming, save for removal of the carport on the east of the Site and removal of the shade cloth but not the frame, in February 2015. Council served two further Notices of its Proposal to serve Orders in similar terms to the Order the subject of this appeal.

9. The most recent Order made by the Council on 11 October 2016 has given rise to this appeal, commenced by the Applicant on 8 November 2017. Within the last week, and in preparation for the hearing, the Applicant has filed material indicating his readiness to make the necessary application seeking to regularise the unauthorised works.

The Site Visit

10. There was a site inspection held on 18 July 2017, which I attended together with the Council’s legal representative Mr Thompson and Council’s experts. Mr Huang appeared as the Applicant’s agent with the consent of the Court. Also present was Ms Sze Tho, architect for the Applicant Mr Vu, who was present with his son.

11. Mr Thompson, with the assistance of Council’s experts, pointed out concerns the Council had with the state of the concrete slab on which the unauthorised works had been constructed, and the difficulty of inspecting it; the challenges in ascertaining what termite treatment had been applied with respect to the timber frame, since covered over, as well as amenity issues including the size of a window to one of the bedrooms and the size of the living/dining area. The Council is also concerned that the Garage would not be able to receive approval as it lies within a flood zone, and the present structure is approximately 200 mm below the flood level, in breach of the Fairfield City Wide DCP.

The Hearing

12. Upon return to Court, Mr Thompson conveyed to the Court that subsequent to the Site inspection, the parties had conferred and had come to an agreed position with respect to the Orders, such that the Orders are to remain in place, but the time for compliance with each of the Orders be extended from 30 days to 90 days.

13. Mr Thompson stressed that this was the last opportunity the Applicant had to comply with the orders. Further, Mr Thompson made plain the Council’s position that it was entering into this agreement by consent on the basis that the Council would take enforcement action against the Applicant upon the expiry of the 90 day period if the Orders were not complied with.

14. Mr Huang confirmed agreement with the position regarding the extension of time for compliance with the Orders, although he took issue with the Council’s submission that the unauthorised works would be unable to receive approval due to the location of the Garage in a flood zone. He submitted that the Applicant now had different plans for the Site which did not involve retention of the current unauthorised works.

15. The Applicant gave evidence through his son, Mr Dong Do Vu, who was sworn in as the Applicant’s interpreter. The Applicant confirmed the agreement of the parties regarding the extension of time for compliance with the Orders, as well as confirmed the Council’s intended course of action.

16. Mr Thompson expressly sought Mr Vu’s concurrence with the following propositions: that Mr Vu understood the requirements of each of the orders, including that the unauthorised works should be demolished and the garage returned to the condition as approved in BA 3299/81; that the time for compliance with the orders would be extended from 30 days to 90 days; and that the Council would take civil enforcement action against the Applicant upon the expiry of the 90 day period, in which case Mr Vu would be liable for further orders including possibly an order for costs. Mr Vu acknowledged these matters. He further acknowledged that he was prepared to enter into consent orders on this basis.

17. Mr Thompson confirmed to the Court that there was no safety reason which prevented the extension of time for compliance with the Orders as sought by the parties.

18. I am satisfied that sufficient evidence has been presented to allow me to determine that it is lawful and appropriate to make the orders sought by consent by the parties, having regard to the whole of the relevant circumstances. No objections were received and consequently the question of notice does not arise.

Orders

19. By consent:

1. Appeal number 333572 of 2016 is upheld.

2. Pursuant to s 121 ZK(4)(b) of the Environmental Planning and Assessment Act 1979, Schedule 1 of the Order of 11 October 2016 issued by the Fairfield City Council the subject of this appeal is varied by deleting each reference to the words “Within a period of THIRTY (30) DAYS from the date of the Order” in each of orders 1,2 and 12 and inserting the words “By midnight on 18 October 2017”.

3. Exhibit 1 is returned.

Rosemary Martin

Senior Commissioner

Decision last updated: 21 July 2017