Shen v Parramatta City Council

[2025] NSWSC 991

Supreme Court

New South Wales

Medium Neutral Citation:

Shen v Parramatta City Council [2025] NSWSC 991

Hearing dates:

28 August 2025

Date of orders:

28 August 2025

Decision date:

28 August 2025

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

(1) The plaintiff's Summons is dismissed.

(2) The plaintiff is to pay the defendants' costs of the proceedings.

(3) The first defendant is released from its undertaking to the Court given on 18 July 2025 and subsequently continued on 30 July 2025.

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Environmental Planning and Assessment Act1979

Land and Environment Court Act 1979 (NSW)

Cases Cited:

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Category:

Principal judgment

Parties:

Jie Shen (plaintiff)
Parramatta City Council (first defendant)
James Miller (second defendant)

Representation:

Counsel:
A Stafford (first and second defendants)
Solicitors:
Jie Shen (self represented plaintiff)
Parramatta City Council Legal Services (defendants)

File Number(s):

2025/250251

Publication restriction:

No

JUDGMENT

1. The plaintiff filed a Summons on 1 July 2025 claiming against the first defendant, Parramatta City Council, and its building compliance officer, the second defendant Mr James Miller, orders to the following effect:

1. That a Development Control Order issued by the Council on 6 January 2025 in respect of developments on the plaintiff's residential property at 223 Pennant Hills Road, Carlingford be quashed.

2. That infringement notices issued for offences of failing to comply with that Development Control Order be treated as invalid or no force or effect by reason of the quashing that is claimed of the Order to Demolish contained within the Development Control Order.

3. A declaration that the Order to Demolish is invalid.

4. An injunction restraining the first defendant, Parramatta City Council from enforcing the Order to Demolish, or entering the premises under any warrant or notice.

2. The defendants filed a notice of motion on 25 July 2025 claiming an order that the proceedings be dismissed and, in the alternative, that if the Court should think fit the proceedings be transferred to the Land and Environment Court under section 149B(1) of the Civil Procedure Act 2005 (NSW).

3. The background is that there is erected on the plaintiff's land at Carlingford a single freestanding dwelling. The land is within the local government boundaries of the City of Parramatta and the first defendant is the consent authority for any development on the land for the purposes of the Environmental Planning and Assessment Act 1979 (NSW): see s 4.5 (d).

4. On 7 March 2024 and 30 August 2024 an authorised Council officer inspected the plaintiff's property and ascertained that development works had been carried out there, namely, the construction of a veranda connected to the street-facing facia of the dwelling, a detached shed close to the rear boundary, a carport also connected to the facia and another carport to the side of the dwelling and close to its side boundary. In addition, excavation works had been carried out below the floor of the building. Consent had not been obtained for any of this development, in breach of the applicable planning law.

5. After the plaintiff had been notified of the planning breach and after the structural soundness of the unauthorised developments had been questioned by the Council, the plaintiff engaged an engineer to give opinions on the work. He entered into communications with the Council about what had been done on his property.

6. By force of s 9.35(1)(b) of the Environmental Planning and Assessment Act, the Council is the relevant enforcement authority with respect to the unauthorised development works that have been undertaken. On 6 January 2025 the Council exercised its power as the enforcement authority by issuing a Development Control Order as provided for in s 9.34(1) and Pt 1 of Sch 5 of the Act. Item 3 in Pt 1 of Sch 5 provides for the making of an order to demolish works in circumstances where a building has been erected without approval, as was the case here. Item 10 in Pt 1 of Sch 5 provides for an order to be made that premises be restored to the condition they were in before unlawful work was undertaken. In the present case those two forms of order would be addressed to demolishing the structures and reinstating the excavation that has taken place under the house.

7. Council's Development Control Order of 6 January 2025 contained both a Demolish Works Order in respect of the veranda, shed and carports and a Restore Works Order in respect of the subfloor excavation. The text of the Development Control Order cited the reasons why prior consent for the work was required, including the explicit stipulation of the Parramatta Local Environmental Plan 2023 and the fact that the works did not comply with development standards that would have to be met in order for the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 to be engaged.

8. The Development Control Order specified that it had to be complied with by Friday 28 February 2025. The Order set out the penalties that could be imposed in the event of conviction for an offence of non-compliance. The Order had not been complied with by 19 March 2025 and Council then issued an infringement notice for an offence against s 9.37 of the Act, specifying a fine of $3,000. By 25 June 2025 the Development Control Order still had not been complied with and a notice for another infringement of s 9.37 was issued for a further fine of $3,000. Section 9.58 of the Environmental Planning and Protection Act empowers an authorised person on behalf of the Council to issue infringement notices, as occurred here.

9. Section 1.4 of the Act defines "the Court" for the purposes of the Act as the Land and Environment Court. Section 8.18 makes the following provision for an appeal against the issue of a Development Control Order.

8.18 Appeals concerning orders

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

[…]

(3) The appeal may be made only:

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

(b) […]

10. Section 20 of the Land and Environment Court Act 1979 (NSW) specifies the categories of proceedings that may be brought in that Court within Class 4. Such proceedings may broadly be described as civil enforcement proceedings. They include, at s 20(1)(e), proceedings as referred to in s 20(2). That subsection, extracted as far as relevant, is as follows:

20(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings-

[…]

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law [...]

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function

11. Subsection (3) of s 20 nominates the statutes that are within the expression "a planning or environmental law" and they include the Environmental Planning and Assessment Act.

12. In s 20(2)(a) the words "review" and "command" are apt to empower the Land and Environment Court to make orders in the nature of certiorari and mandamus. Subparagraph (c) of s 20(2) expressly enables the Land and Environment Court to grant declaratory relief in relation to orders of Council such as the Development Control Order in this case.

13. Section 71 of the Land and Environment Court Act makes this provision:

71 Proceedings in Supreme Court

(1) Subject to section 58, proceedings of the kind referred to in s 20(1)(e) may not be commenced or entertained in the Supreme Court.

14. Section 58 provides for appeals from the Land and Environment Court to the Supreme Court in relation to Class 4 proceedings. The relevant part of s 58 is in the following terms:

58 Class 4 proceedings - appeals

(1) Where a party to proceedings in Class 4 of the Court's jurisdiction is dissatisfied with an order or decision (including an interlocutory order or decision) of the Court the party may appeal to the Supreme Court against the order or decision.

15. The effect of s 71 of the Land and Environment Court Act is that the plaintiff's proceedings in this Court are incompetent and must be dismissed. This Court has no jurisdiction to undertake judicial review of the Council's decision of 6 January 2025 to issue the Development Control Order. The plaintiff’s purported claim for judicial review is forbidden to be commenced in this Court and the Court cannot entertain it. His avenue of appeal from, or review of, the decision to issue the Development Control Order is, exclusively, to the Land and Environment Court pursuant to ss 20(1)(e) and 20(2) of the Environmental Planning and Assessment Act.

16. The plaintiff submits that the Parliament of New South Wales has no power to oust what he contends is the supervisory jurisdiction of this Court with respect to the Council's exercise of statutory powers. In support of that claim he has cited Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1. In that case the High Court considered s 179 of the Industrial Relations Act 1996 (NSW), which provided that a decision of the Industrial Court was final and might not be appealed against, reviewed or quashed or called into question by any court or tribunal, including by proceeding for any relief or remedy whether by order in the nature of prohibition, certiorari, mandamus, injunction, declaration or otherwise.

17. The High Court held that s 179 precluded the Supreme Court from granting orders in the nature of certiorari for error of law on the face of the record but not for jurisdictional error. The Court said that s 179 should be construed not to extend to a decision of the Industrial Court made outside the limits of that court’s power. The High Court held that Chapter III of the Constitution would be infringed if a State Supreme Court should be deprived of supervisory jurisdiction to enforce limits on the exercise of State executive power or on the powers of inferior tribunals.

18. That holding has nothing to do with the present situation. What the plaintiff is seeking to do here is judicial review of an administrative decision of an authority, namely the Parramatta City Council. Section 71 of the Land and Environment Court Act does not take away from this Court any of its power to enforce limits on the exercise of State executive power or to supervise inferior courts and tribunals to keep them within their jurisdictional limits. The administrative decision of the Council is amenable to review at the suit of the plaintiff by the procedure in s 20 of the Land and Environment Court Act, therein referred to as an appeal. Grounds of appeal may include excess of jurisdiction by the Council. Section 58 of the Land and Environment Court Act provides for an appeal from the Land and Environment Court to this Court, whereby observance of jurisdictional limits on powers of the Council – and of the Land and Environment Court itself – may be enforced by the Supreme Court.

19. There is no attempt by the legislature, in enacting s 71, to exclude this Court's relevant supervisory control over exercise of jurisdiction by the executive or by any inferior court or tribunal. Mr Shen's argument is misconceived. The only other bases upon which he argued that s 71 did not preclude the proceeding that he has brought by his summons was an argument that there is public interest in the matter and that there has been systemic wrongdoing by Council. I do not find either of those further arguments coherent and they do not carry any weight or put in doubt the clear effect of s 71.

20. Mr Shen submits that, rather than dismiss the summons, the Court should exercise the power conferred by s 149B of the Civil Procedure Act to transfer the matter to the Land and Environment Court. The relevant part of s 149B is as follows:

149B - Transfer of proceedings between Supreme Court and the Land and Environment Court

(1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court.

21. There is no question of it being "more appropriate" for these proceedings to be heard in the Land and Environment Court. The proceedings are incompetent. There is no valid proceeding that would be eligible for transfer according to the sort of considerations that might govern choice of the more appropriate forum.

22. Furthermore, the summons was filed in this Court well outside the 28 day time limit prescribed by s 8.18 of the Environmental Planning and Assessment Act for commencing proceedings in the Land and Environment Court. If there exists any power in the Land and Environment Court to extend time for commencement of an appeal against a Development Control Order, that power should be exercised by that Court. It would be for that Court to determine whether it has the power to extend time and also to consider any discretionary considerations that might justify extension. It would be contrary to principle for this Court to defeat the effect of the 28 day time limit and to circumvent the Land and Environment Court's exercise of such powers to extend time as it may have, by treating the proceeding in this Court as if it were validly commenced and then purporting to transfer the matter to the Land and Environment Court as an active case.

23. No order for transfer of the proceedings to the Land and Environment Court will be made.

24. The first defendant gave an undertaking on 18 July 2025 not to take any further enforcement action under its Development Control Order in respect of the plaintiff’s property up to 31 July 2025. On 30 July 2025 the Court noted that that undertaking was continued, and it was not specified to what date. I will deal with the undertaking to bring it to an end, out of abundant caution.

25. The orders of the Court are:

1. The plaintiff's Summons is dismissed.

2. The plaintiff is to pay the defendants' costs of the proceedings.

3. The first defendant is released from its undertaking to the Court given on 18 July 2025 and subsequently continued on 30 July 2025.

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Decision last updated: 29 August 2025