Paceskoski v Fairfield City Council

[2022] NSWLEC 1008

Land and Environment Court

New South Wales

Medium Neutral Citation:

Paceskoski v Fairfield City Council [2022] NSWLEC 1008

Hearing dates:

Conciliation conference on 12 October, 3 November, and 13 December 2021

Date of orders:

13 January 2022

Decision date:

13 January 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

See orders at [11]-[12] below.

Catchwords:

DEVELOPMENT CONTROL ORDERS– stop use – demolish - erection of secondary dwelling not in accordance with approval – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.2, 6.4, 8.18, 9.30, 9.34, Sch 5, Pt 1

Fairfield Local Environment Plan 2013

Land and Environment Court Act 1979, ss 17, 34, 39

Texts Cited:

Building Code of Australia

Category:

Principal judgment

Parties:

Robert Paceskoski (First Applicant)
Zana Paceskoski (Second Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
M Hanna (Solicitor)(Applicant)
S Shneider (Solicitor)(Respondent)

Solicitors:
Project Lawyers (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2021/171860 and 2021/171859

Judgment

1. COMMISSIONER: The Applicants are appealing two Development Control Orders (DCOs) served by Fairfield City Council (Council) on 18 May 2021 in relation to the Applicant’s property at 11 Hemphill Avenue, Mt Pritchard NSW being the whole of the land in Lot 2 Deposited Plan 557415 (the Land). In summary the two DCOs are as follows:

1. Proceedings No. 2021/171860 relate to the DCO served pursuant to s 9.34(1)(a) and Sch 5 Pt 1 – General Orders – Order No. 1 of the Environmental Planning and Assessment Act 1979 (EPA Act), requiring the Applicants to stop “the outbuilding use” carried out within a detached dwelling on the Land, for the habitable purpose as a separate dwelling house, and to contact the assigned Council officer to inspect the premises to ensure the use has stopped to Council’s satisfaction (First DCO).

2. Proceedings No. 2021/272859 related to the DCO served pursuant to s 9.30(1)(1)(a) and Sch 5 Pt 1 – General Orders – Order No. 3 of the EPA Act, requiring the Applicants to demolish and remove all parts of the outbuilding constructed within the rear yard of the Land, including all demolition waste, spoil and debris, and to contact the assigned Council officer to inspect the premises to ensure the work has been carried out to the Council’s satisfaction (Second DCO).

2. The Applicants appealed both DCOs in accordance with s 8.18(1)(a) and within the time period of 28 days as provided by s 8.18(3)(a) of the EPA Act.

3. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The statutory power or function to be exercised in determining the proceedings is s 8.18(4) of the EPA Act and ss 34(3) and 39(2) of the LEC Act.

5. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 October, 3 November and 13 December 2021. I presided over the conciliation conference.

6. 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. This decision involved the Court upholding both appeals, and modifying both DCOs.

7. 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. The parties’ decision involves the Court exercising the function under s 8.18(b) of the EPA Act, and ss 34(3) and 39(2) of the LEC Act, to modify the 2 DCOs.

Legislation

EPA Act

Schedule 5 Development Control Orders

Part 1 General Orders

No.	Column 1 To do what?	Column 2 When?	Column 3 To whom
1	Stop Use Order To stop using premises or a building Not to conduct or to stop conducting an activity on the premises	Premises are being used— •  for a prohibited purpose, or •  for a purpose for which a planning approval is required but has not been obtained, or •  in contravention of a planning approval. Building is being used— •  inconsistently with its classification under this Act or the Local Government Act 1993, and •  in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  in a manner that is not regulated or controlled under any other Act by a public authority. Premises are being used for an activity (that would or would be likely to require planning approval) that— •  constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  is not regulated or controlled under any other Act by a public authority •  in contravention of this Act, or •  in a manner that would affect the support of adjoining premises.	•  Owner of the land •  Any person apparently engaged in the work
3	Demolish Works Order To demolish or remove a build	A building— •  requiring a planning approval is erected without approval, or •  requiring approval under the Local Government Act 1993 is erected without approval, or •  is or is likely to become a danger to the public, or •  is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or •  is erected in contravention of this Act.	Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building

Division 8.5 Appeals—development control orders

divs 8.4–8.6 (ss 8.16–8.26): Ins 2017 No 60, Sch 8.1 [2].

8.18   Appeals concerning orders

(cf previous s 121ZK)

(1)  A person who is given a development control order may appeal to the Court against the order.

(2)  However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(4)  On hearing an appeal, the Court may—

(a)  revoke the development control order, or

(b)  modify the development control order, or

(c)  substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d)  find that the development control order is sufficiently complied with, or

(e)  make such order with respect to compliance with the development control order as the Court thinks fit, or

(f)  make such other order with respect to the development control order as the Court thinks fit.

LEC Act

39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

………………

8. 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, and explained how they have been satisfied as follows:

1. Both DCOs relate to the erection on the Land of a detached outbuilding (the outbuilding) built within the rear yard of the Land.

2. There is a 2011 planning approval for a secondary dwelling on the land. However, that secondary dwelling as built does not accord with that planning approval, or comply with the approved plans.

3. The First DCO refers to a building that requires planning approval and has been erected without such approval. An alternative categorisation, also being a jurisdictional precondition in accordance with column 2 of Sch 5 of the EPA Act, is that the outbuilding is being used in contravention of a planning approval.

4. Both DCOs refer to an “outbuilding”. The outbuilding in both DCOs is in fact a secondary dwelling as defined in the Fairfield Local Environment Plan 2013 (FLEP 2013). In accordance with the FLEP 2013 definition, the outbuilding shall now be referred to as a secondary dwelling.

5. The Land is zoned R2 Low Density Residential under the FLEP 2013, and secondary dwellings are permissible with a development consent or complying development certificate.

6. The Council’s power to issue the 2 DCOs is pursuant to s 9.34 of the EPA Act.

7. The 2 DCOs are as set out in the EPA Act, Sch 5, Pt 1 General Orders, being Orders numbered 1 and 3.

9. 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:

1. The Land falls within the Local Government Area of the Council.

2. The Applicants are the owners of the Land in compliance with the service of the DCOs being Orders 1 and 3 of Sch 5 of the EPA Act.

3. The Council has power to issue the 2 DCOs in accordance with s 9.34(1)(a) of the EPA Act.

4. In accordance with s 9.34(3) of the EPA Act a reference to a planning approval in Sch 5 Pt 1 of that Act is a reference to a development consent.

5. The Land is within the R2 Zone and the construction of residential dwellings is permissible with consent.

6. The outbuilding was constructed in contravention of s 4.2(1)(a) and (b) as it was constructed within the R2 Zone without consent, or, alternatively, not in accordance with the consent granted by Council for a secondary dwelling. The outbuilding is substantially larger than the secondary dwelling to which Council granted development consent.

7. The Applicants appealed the 2 DCOs in accordance with s 8.18(1)(a) of the EPA Act, and in accordance with the time provisions in s 8.18(3)(a) of the EPA Act.

8. During the s 34 conciliation conference the Applicants agreed to make the following changes to the outbuilding:

1. Create an alfresco open space area at the front entrance;

2. Reduce the size of the dwelling from a 2 bedroom/kitchen/living area to a 1 bedroom combined kitchen/living area;

3. Create an open space area at the rear of the dwelling, with steps down from the secondary dwelling to that open space area.

4. Remove a small outbuilding on the rear of the Land.

9. The First DCO is to be amended in accordance with s 8.18(4)(b) to modify the Order from a “stop use” order to a stop using and do not continue to use the secondary dwelling on the Land from April 2022 or until the following occurs:

1. The secondary dwelling has been constructed in accordance with the plans dated 4 November 2021 prepared by InHaus Designs Rev A, being part of Annexure B.

2. A Building Information Certificate (BIC) is submitted to Council in respect of the “as built” components of the secondary dwelling being those parts of the secondary dwelling that are not indicated on the plans as being “construction certificate works”.

3. A construction certificate in accordance with s 6.4(a) of the EPA Act is obtained for all works indicated on the plans as being “construction certificate works”.

4. An occupation certificate in accordance with s 6.4(c) of the EPA is obtained in respect of a secondary dwelling.

10. The Second DCO has been amended from a “demolish” order provided the following occurs within the time provisions set out in Annexure B:

1. The Applicants submit a BIC to the Council in respect of the “as built” components of the secondary dwelling that are not indicated on the plans dated 4 November 2021, prepared by InHaus Designs Rev A (a copy of which are in Annexure B) being a Proposal for a Building Certificate for existing granny-flat; and more particularly described as follows:

1. InHaus Designs 00 Cover Sheet;

2. InHaus Designs 01 Site Plan;

3. InHaus Designs 02 Ground/Roof Plan;

4. InHaus Designs 03 Elevations Plan;

5. InHaus Designs 04 Sections Plan;

6. InHaus Designs 05 Shadow Diagrams;

7. InHaus Designs 06 Shadow Diagrams;

8. InHaus Designs 07 Sediment Control Plan;

9. InHaus Designs 08 GFA Calculations;

10. InHaus Designs 09 Drainage Plan;

11. InHaus Designs Schedule of Colours and Finishes.

2. The BIC is to be accompanied by material demonstrating to the Council’s satisfaction that the “as built” component of the secondary dwelling is constructed in accordance with the Building Code of Australia.

3. The Second DCO is otherwise amended in accordance with Annexure B.

11. The Court has power to amend the Orders in accordance with s 8.18(4)(b) of the EPA Act and s 39(2) of the LEC Act.

10. 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.

11. In relation to proceedings no. 2021/00171860, the Court orders that:

1. The appeal is upheld.

2. The Court, pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 amends Development Control Order – General Order No. 1 given to the Applicants by the Respondent on or about 18 May 2021 in accordance with Annexure A.

3. No order is made as to costs.

12. In relation to proceedings no. 2021/00171859, the Court orders that:

1. The appeal is upheld.

2. The Court pursuant to s 8.18(b) of the Environmental Planning and Assessment Act 1979 amends Development Control Order – General Order No. 3 given to the Applicants by the Respondent on or about 18 May 2021 in accordance with the amended Order in Annexure B.

3. No order as to costs.

…………………………

M Peatman

Acting Commissioner of the Court

(Annexure A Order 1) (199439, pdf)

(Annexure B Order 3) (207827, pdf)

(Architectural Plans) (10830871, pdf)

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Decision last updated: 13 January 2022