Fam v Fairfield City Council

[2024] NSWLEC 1721

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fam v Fairfield City Council [2024] NSWLEC 1721

Hearing dates:

Conciliation conference 11 October 2024

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the terms of the Development Control Order No.3 dated 5 September 2023 given by Fairfield City Council to Mr Richard Fam and Ms Liz Fam and relating to 36 Riverview Road Fairfield NSW 2165 legally described as Lot 75 DP 11685, Lot 1 DP 1101938 and Lot 2 DP 563805 are modified as set out at Annexure A.

Catchwords:

APPEAL – development control order – demolish works order - conciliation conference – agreement reached to modify order

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34

Land and Environment Court Act 1979, ss 17, 34

Category:

Principal judgment

Parties:

Richard Fam (First Applicant)
Liz Fam (Second Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
C Irish (Applicants)
S Shneider (Respondent)

Solicitors:
Kreisson Legal Pty Ltd (Applicants)
Houston Dearn O’Connor (Respondent)

File Number(s):

2023/308433

Publication restriction:

Nil

ex tempore Judgment

1. COMMISSIONER: The Applicants, Richard and Liz Fam (Fam) have appealed pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979 (EPA Act) against a demolish works development control order (DCO) issued on 5 September 2023 by Fairfield City Council (Council).

2. The DCO is a demolish works order in relation to unauthorised construction works carried out for a retaining wall and hardstand surface along the river bank of Orphan School Creek at 36 Riverview Road, Fairfield.

3. This appeal was set down for a hearing between 10-11 October 2024. At the hearing and upon the request of the parties, the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held today, 11 October 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, as filed to the Court on 11 October 2024. This decision involved the Court upholding the appeal and modifying the DCO. The parties’ decision involves the Court exercising the function under s 8.18(b) of the EPA Act to modify the DCO issued 5 September 2023.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

Jurisdictional Prerequisites

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a jurisdictional statement and explained how the jurisdictional prerequisites have been satisfied. As set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

7. Section 17(d) of the LEC Act grants power to the Court to hear appeals made under s 8.18(4) of the EPA Act.

8. Section 8.18(4) of the EPA Act gives the Court power to modify a DCO.

9. I accept the parties’ agreement that the modified demolish works order, including timeframes for the lodgement of any future building information certificate and development application, meet the requirements of s 9.34(1) and Part 1 of Sch 5, Item 3 in that:

1. The identified unauthorised building works require development consent.

2. The modified order is to be issued to the owner of the property.

10. Accordingly, I am satisfied that pursuant to s 8.18(4)(b) of the EPA Act, that the modification of the demolish works order is within the power of the Court.

Conclusion

11. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

12. I have considered the jurisdictional prerequisites identified by the parties and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

13. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the terms of the Development Control Order No.3 dated 5 September 2023 given by Fairfield City Council to Mr Richard Fam and Ms Liz Fam and relating to 36 Riverview Road Fairfield NSW 2165 legally described as Lot 75 DP 11685, Lot 1 DP 1101938 and Lot 2 DP 563805 are modified as set out at Annexure A.

S Porter

Commissioner of the Court 

Annexure A

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Decision last updated: 06 November 2024