Raza v Fairfield City Council

[2025] NSWLEC 1119

Land and Environment Court

New South Wales

Medium Neutral Citation:

Raza v Fairfield City Council [2025] NSWLEC 1119

Hearing dates:

Conciliation Conference 30 October 2024, 16 January 2025

Date of orders:

28 February 2025

Decision date:

28 February 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

Proceedings 2024/209625

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court substitutes the Development Control Order No 3 dated 20 May 2024 (CRM 554288/2023/LT(379/2024) given by the respondent to the applicant relating to 18 Larra Street Yennora NSW 2061, being land legally described as Lots 17 and 18, Section 8, Deposited Plan 1625, with the development control order set out an Annexure A.

Proceedings 2024/209626

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court substitutes the Development Control Order No 3 dated 20 May 2024 (CRM 554288/2023/LT(380/2024) given by the respondent to the applicant relating to 18 Larra Street Yennora NSW 2061, being land legally described as Lots 17 and 18, Section 8, Deposited Plan 1625, with the development control order set out an Annexure B.

Proceedings 2024/209627

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court substitutes the Development Control Order No 3 dated 20 May 2024 (CRM 554288/2023/LT(378/2024) given by the respondent to the applicant relating to 18 Larra Street Yennora NSW 2061, being land legally described as Lots 17 and 18, Section 8, Deposited Plan 1625, with the development control order set out an Annexure C.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.10, 8.11, 8.18, 8.25, 9.34, Sch 5

Land and Environment Court Act 1979, ss 17, 34

Fairfield Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Saulat Raza (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
A Pickup (Solicitor) (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Pickup Legal (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2024/209625
2024/209626
2024/209627

Publication restriction:

No

Judgment

1. COMMISSIONER: This judgment deals with the following three appeals (collectively referred as to the Proceedings):

1. Proceedings 2024/209625 (Secondary Dwelling Proceedings) – an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order issued by the respondent on 20 May 2024 under s 9.34(1) and Item 3 of Part 1 of Schedule 5 of the EPA Act (Secondary Dwelling Demolition Order), requiring the applicant to demolish the unauthorised second dwelling on land identified as Lots 17 and 18, Section 8 in Deposited Plan 1625, known as 18 Larra Street Yennora (Site).

2. Proceedings 2024/209626 (Dwelling Addition Proceedings) – an appeal pursuant to s 8.18 of the EPA Act against the Development Control Order issued by the respondent on 20 May 2024 under s 9.34(1) and Item 3 of Part 1 of Schedule 5 of the EPA Act (Dwelling Addition Demolition Order), requiring the applicant to demolish the unauthorised addition to the rear of the dwelling and associated awning structures on the Site.

3. Proceedings 2024/209627 (Rumpus Proceedings) - an appeal pursuant to s 8.18 of the EPA Act against the Development Control Order issued by the respondent on 20 May 2024 under s 9.34(1) and Item 3 of Part 1 of Schedule 5 of the EPA Act (Rumpus Demolition Order), requiring the applicant to demolish the unauthorised rumpus room, hall, studio and bathroom facilities on the Site.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Site is partly zoned R2 Low Density Residential under the Fairfield Local Environmental Plan 2013 (FLEP). The Site is owned by the applicant.

4. At the time the Secondary Dwelling Demolition Order, Dwelling Addition Demolition Order and Rumpus Demolition Order (together, the Orders) were issued, it is agreed that the following relevant structures were located on the Site (collectively, the Structures):

1. a detached garage allegedly converted into a secondary dwelling (Secondary Dwelling);

2. a dwelling addition, attached awning and detached awning (Dwelling Addition Structures); and

3. a rumpus room/hall, associated structures and studio (Rumpus and Associated Structures).

5. It was the respondent’s contention that the Structures:

1. were constructed/located on the Site without consent and were unlawful;

2. have not been established to have been built in a manner compliant with the National Construction Code, Building Code of Australia or other relevant Australian Standards;

3. have not been established to have been built in accordance with relevant provisions of the FLEP, Fairfield Development Control Plan 2013 (FDCP) or Draft Fairfield Development Control Plan (Draft FDCP);

4. have not been surveyed; and

5. have not been established to capture and dispose of stormwater adequately.

6. On 24 April 2024, the respondent issued the applicant with a:

1. Notice of Intention to Give an Order in respect of the unauthorised Secondary Dwelling;

2. Notice of Intention to Give an Order in respect of the unauthorised Dwelling Addition; and

3. Notice of Intention to Give an Order in respect of the unauthorised Rumpus and Associated Structures,

4. (collectively, the Notices).

7. No representations were received in response to the Notices.

8. The Orders were issued by the respondent on 20 May 2024 pursuant to s 9.34(1) and Part 1 of Schedule 5 of the EPA Act.

9. On 6 June 2024, the applicant commenced the Proceedings, being within the time period specified in s 8.18(3) of the EPA Act.

10. On 30 October 2024, the parties participated in a s 34 conference in respect of both matters, which was adjourned on multiple occasions. I presided over the conciliation conference.

11. During the course of the conciliation process, the parties reached agreement as to the resolution of both proceedings.

12. The agreement reached is for:

1. the Secondary Dwelling Demolition Order to be substituted with a development control order (Substituted Secondary Dwelling Demolition Order) requiring the applicant to lodge a development application to redevelop the Site within 120 days of the conclusion of these proceedings, and the demolition of the Secondary Dwelling following a defined time period at the conclusion of the determination of that development application or failure to lodge said application;

2. the Dwelling Addition Demolition Order to be substituted with a development control order (Substituted Dwelling Addition Demolition Order) requiring the applicant to lodge a development application to redevelop the Site within 120 days of the conclusion of these proceedings, and the demolition of the Dwelling Addition following a defined time period at the conclusion of the determination of that development application or failure to lodge said application; and

3. the Rumpus Demolition Order to be substituted with a development control order (Substituted Rumpus Demolition Order) requiring the applicant to lodge a development application to redevelop the Site within 120 days of the conclusion of these proceedings, and the demolition of the Rumpus and Associated Structures following a defined time period at the conclusion of the determination of that development application or failure to lodge said application,

4. (collectively, the Substituted Orders).

13. The parties provided final signed s 34 agreements in the Proceedings on 28 January 2025 with accompanying jurisdictional statements.

Substituted Orders

14. To make orders in accordance with the parties’ agreement in the Proceedings, I must be satisfied that the decision to make orders substituting the Orders is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). 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.

15. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

(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.

16. It is clear that the Court has power to substitute a development control order pursuant to s 8.18(4)(c) of the EPA Act.

17. I am satisfied the Orders should be substituted in the manner proposed by the parties on the basis that:

1. The Substituted Orders are agreed by the parties to be issued pursuant to Item 3 of Pt 1 of Sch 5 of the EPA Act, being a “Demolish Works Order”. The applicant is the owner of the Structures the subject of the Substituted Orders such that the applicant is able to be issued with the Substituted Orders pursuant to Column 3 of Item 3 in Pt 1 of Sch 5 of the EPA Act. I note that the applicant was also able to be issued with the original Orders on the basis that it was the “owner” of the Structures for the purposes of Order No 3.

2. It is agreed that the Structures require planning approval and were erected (and/or augmented) without approval. Therefore, the Substituted Orders fall within the scope of Column 2 of Item 3 in Pt 1 of Sch 5 of the EPA and are in accordance with s 9.34 of the EPA Act.

3. The Substituted Orders require the demolition of the unauthorised Structures and therefore fall within the scope of Column 1 of Item 3 in Pt 1 of Sch 5 of the EPA Act. The parties agree that the demolition of the Structures (either imminently or following development consent to redevelop the Site) will resolve the respondent’s concerns in relation to the unauthorised Structures.

Conclusion

18. 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

Proceedings 2024/209625

19. The Court orders that:

1. (1) The appeal is upheld.

2. (2) Pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court substitutes the Development Control Order No 3 dated 20 May 2024 (CRM 554288/2023/LT(379/2024) given by the respondent to the applicant relating to 18 Larra Street Yennora NSW 2061, being land legally described as Lots 17 and 18, Section 8, Deposited Plan 1625, with the development control order set out an Annexure A.

Proceedings 2024/209626

20. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court substitutes the Development Control Order No 3 dated 20 May 2024 (CRM 554288/2023/LT(380/2024) given by the respondent to the applicant relating to 18 Larra Street Yennora NSW 2061, being land legally described as Lots 17 and 18, Section 8, Deposited Plan 1625, with the development control order set out an Annexure B.

Proceedings 2024/209627

21. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court substitutes the Development Control Order No 3 dated 20 May 2024 (CRM 554288/2023/LT(378/2024) given by the respondent to the applicant relating to 18 Larra Street Yennora NSW 2061, being land legally described as Lots 17 and 18, Section 8, Deposited Plan 1625, with the development control order set out an Annexure C.

N Targett

Commissioner of the Court

**********

Annexure A

Annexure B

Annexure C

Decision last updated: 28 February 2025