Nguyen v Fairfield City Council

[2015] NSWLEC 1385

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nguyen v Fairfield City Council [2015] NSWLEC 1385
Hearing dates:	23 September 2015
Date of orders:	24 September 2105
Decision date:	24 September 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Consent Orders: orders for unauthorised building works and use of premises
Texts Cited:	Building Code of Australia
Category:	Principal judgment
Parties:	Ngoc Tuan Nguyen (Applicant) Fairfield City Council (Respondent)
Representation:	Solicitors: Mr J Thompson (Respondent) Mr N T Nguyen (Litigant in Person)
File Number(s):	10184 of 2015, 10185 of 2015, 10186 of 2015

Judgment

1. These three appeals relate to Orders issued by Fairfield City Council in relation to unauthorised building works and use of premises at 39 Rosina Street, Fairfield West.

2. The matters were the subject of an earlier conciliation conference presided over by myself and held on site on 27 May 2015. At that time there was no resolution of the issues and the conciliation conference was terminated.

3. Since that time Mr Nguyen has lodged a development application seeking consent for alterations and additions to the dwelling on the land and also lodged a building certificate and received advice from the council that certificate would be issued subject to certain works being undertaken. The council determined the development application on 18 August 2015 and issued development consent DA 326.1/2015. According to the evidence, the consent is subject of conditions that address the council’s intentions in the case.

4. As a result of those approvals the parties are now seeking Consent Orders from the Court.

The site and works subject to the Orders

5. The site is a residential allotment on the southern side of Rosina Street and contained a dwelling house with attached garage. At the time of the conference, the Court observed a number of alterations and additions to that dwelling that the council advised had been carried out without its consent. That work is reflected in the Orders.

6. The work involved alterations additions to the dwelling house so as increase the area of the dwelling and add a second dwelling including the use of the garage as part of the second dwelling. In addition a freestanding building had been constructed in the rear yard of the site and was being used as a third dwelling.

Actions of the applicant

7. The applicant in the proceedings has lodged and obtained a development consent that has the effect of providing for the main dwelling house and a secondary dwelling on the land. Mr Nguyen has also provided the council with an undertaking that all works required will be undertaken within 12 months from the date of consent (Exhibit 1).

8. The council is satisfied that the works required by the conditions of consent will be compliant with its planning controls and the Building Code of Australia.

9. Mr Thompson, for the council, advises that Court that provided the works are undertaken and the unauthorised dwellings are not occupied, there are no fire safety risks.

Conclusion and findings

10. Having regard to the council’s submissions, I am satisfied that the consent that has been granted by the council will address the issues in the case. It is important that Mr Nguyen undertakes the works as required and ensures that the main dwelling on the land is the only building occupied until such time as the works are completed.

11. There being no reason why the Consent Orders should not be made, by consent, the orders of the Court are:

1. In matter No 10184 of 2015

1. The appeal is upheld.

2. The Order issued under Section 121B of the Environmental Planning and Assessment Act dated 5 February 2015 in relation to property at 39 Rosina Street Fairfield West that required the removal of all unauthorised building works from the approved and existing dwelling and restoration of the dwelling to the condition in which it was before work was unlawfully carried out is revoked.

2. In matter No 10185 of 2015

1. The appeal is upheld.

2. The Order issued under Section 121B of the Environmental Planning and Assessment Act dated 5 February 2015 in relation to property at 39 Rosina Street Fairfield West that required the demolition and removal of unauthorised buildings (2 granny flats), situated at the rear of the premises, made from fibro cement sheet and sheet metal, the removal of all the demolished building materials from the subject premises to a licences building material recycling centre and the keeping of receipts for that disposal and provision of those receipts to council is revoked.

3. In matter No 10186 of 2015

1. The appeal is upheld.

2. The Order issued under Section 121B of the Environmental Planning and Assessment Act dated 5 February 2015 in relation to property at 39 Rosina Street Fairfield West that required the applicant to cease the unauthorised use of the two (2) fibro cement sheet clad, sheet metal roof, single storey buildings (2 granny flats) is revoked.

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Sue Morris

Commissioner of the Court

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Decision last updated: 24 September 2015