Tan v Canterbury-Bankstown Council

[2019] NSWLEC 1451

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tan v Canterbury-Bankstown Council [2019] NSWLEC 1451
Hearing dates:	20 September 2019
Date of orders:	20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) The development control order issued by the Respondent to the Applicant dated 24 April 2019 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order at Annexure A. (3) Each party shall pay its own costs of these proceedings.
Catchwords:	APPEAL – development control order – demolition of carport and shed – parties agree to modified development control order
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Texts Cited:	Building Code of Australia
Category:	Principal judgment
Parties:	Li Ying Tan (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: Y Cingiloglu (Solicitor) (Applicant) J Strati (Solicitor) (Respondent)   Solicitors: The Australian Legal Practice (Applicant) Canterbury-Bankstown Council (Respondent)
File Number(s):	2019/178350
Publication restriction:	No

Judgment

1. COMMISSIONER: On 24 April 2019, Canterbury-Bankstown Council (“the Council”) issued a development control order that requires the demolition of a carport and shed constructed at 10 Moncur Avenue, Belmore. Mr Tan appeals against the order, pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. The order was issued by the Council pursuant to Division 9.3 of the EPA Act and Part 1 of Schedule 5 to the Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Part 1 of Schedule 5. Item 3 of Part 1 of Schedule 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”. It is not disputed by Mr Tan that the carport and shed require planning approval, and that they were erected without approval.

3. The order is in the following terms:

“1. Demolish and remove the unauthorised awning/carport structure, measuring approximately 13 x 3 metres, attached to the southern wall of the existing secondary dwelling located in the rear yard of the premises, and

2. Demolish and remove the unauthorised awning/carport structure, measuring approximately 4 x 3.5 metres, attached to the eastern wall of the existing secondary dwelling located in the rear yard of the premises.”

4. The parties have now reached agreement on the terms of a modified development control order with respect to the carport and the shed. The modified development control order requires that Mr Tan demolish the shed and modify the carport so that it is reduced in size and its setback from the boundary is increased. For the reasons that follow, I consider it appropriate to allow the appeal and make an order for the development control order to be modified in the manner agreed to by the parties.

The role of the Court on appeal

5. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the Land and Environment Court Act 1979 (‘the Court Act’) provides as follows:

39 Powers of Court on appeals

...

(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.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal...

6. In addition, s 8.18(4) sets out the powers of the Court on an appeal against an order. Those powers are 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.

The circumstances that led to the issue of the order

7. On 22 July 2016, a complying development certificate (“CDC”) (known as 2016/00386) was issued, authorising works to be carried out on the site the subject of the order. Those works included the demolition of an existing garage and construction of a secondary dwelling. At that time, a carport existed on the site and was not proposed to be changed by the works authorised by the CDC. The structure was noted on the CDC as “EXISTING OPEN CARPORT NO CHANGE”. This is shown at Figure 1.

8. The works the subject of the CDC were carried out between February and December 2017. An aerial photograph of the site, following construction of the CDC approved works is shown at Figure 2.

9. In or around March or April 2019, a wrap-around carport was constructed, attached to the approved secondary dwelling. A shed was also constructed beneath part of the carport. An aerial photograph of the site with highlighting of the carport structure is provided at Figure 3. The shed is not visible as it sits beneath the carport.

Planning approval was required

10. The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“SEPP ECDC”) allows certain development to be carried out without obtaining development consent, including the construction of carports and sheds. However, to be exempt from obtaining development consent, that development must be carried out pursuant to the standards set out in the SEPP. With respect to carports, this includes a requirement (at cl 2.20), insofar as it applies to the site, for the carport to not have a floor area more than 20m², and to be located at a distance of 900mm from the boundary. Further, a roof of a carport “must be located at least 500mm from each lot boundary” (cl 2.20(2)). With respect to the shed, this includes a requirement (at cl 2.19), for a site with the zoning of the present site, that it be located at a distance of 900mm from the boundary.

11. As both the carport and the shed were built without any setback from the boundary, both the carport and the shed do not meet the development standards in the SEPP ECDC and cannot therefore be considered exempt development under the SEPP ECDC.

12. Accordingly, as the shed and carport were not authorised by the CDC or as exempt development pursuant to the SEPP ECDC, planning approval was required. It is agreed that this was not obtained. The requirements of Item 3 of Part 1 of Schedule 5 to the EPA Act are therefore met, and there is power for the order to be issued for the demolition of the structures, pursuant to s 9.34 of the EPA Act.

The agreed outcome of the appeal

13. Notwithstanding this, the parties have signed consent orders that, if made by the Court, would modify the order to permit Mr Tan to demolish the shed and to alter the carport so that it meets the requirements of the SEPP ECDC and is otherwise of a size similar to that of the carport that existed prior to the grant of the CDC. This, in turn, will meet the requirements of the Building Code of Australia (“BCA”) with respect to the minimum distance of the structure from the boundary and the development standards in cl 2.20 of the SEPP ECDC. The modified order also requires appropriate structural certification to be provided by a suitably qualified structural engineer, which would be similar to the certification that would be required if a form of planning approval under the EPA Act was granted for the work. The terms of the order are as follows:

“Li Ying Tan must:

1. Demolish that part of the awning/carport attached to the southern and eastern wall of the secondary dwelling located on the Premises and construct new timber posts and footings to support the remaining awning/carport in the manner shown on the attached plans (“Plans”);

2. Demolish the garden shed as shown on the Plans;

3. Undertake all demolition in accordance with the Work Health and Safety

Act 2011, Work Health and Safety Regulations 2017, Australian Standard

AS: 2601 -The Demolition of Structures and the Work Safe Australia

Demolition Work Code of Practice; and

4. Provide certification from a suitably qualified structural engineer that the works the subject of this Order that are present on the Premises after compliance with paragraphs 1 and 2 above comply with the Building Code of Australia (Volume 2) and are otherwise structurally sound and fit for purpose.”

14. An extract of the plan referred to in paragraph 1 of the orders is shown at Figure 4.

15. The Council submits that the agreed modified development control order is an appropriate outcome for the site, as it allows the carport to be brought into compliance with the BCA whilst also reflecting what was on the site prior to the works authorised by the CDC. The Council also considers the outcome acceptable in circumstances where it will allow a landscaped area to be restored and maintained, whilst not preventing future exempt development from being carried out on the site.

The consent orders are appropriate

16. As set out above at [6], the Court has a broad power to modify the development control order on an appeal against the order. Further, in proposing a modified order with respect to the carport, the Council is also relying on Item 11 of Schedule 5 to the EPA Act, which allows a type of development control order called a “Compliance Order” to be issued to require the recipient “[to] do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards”. That order can be issued where the “[b]uilding has been unlawfully erected and does not comply with relevant development standards.” The carport meets this requirement and the modified order, insofar as it relates to the carport, allows it to be compliant with the relevant development standards in the SEPP ECDC as well as the BCA.

17. In circumstances where the modified development control order requires the unauthorised shed to be demolished, consistent with Item 3 of Schedule 5 to the EPA Act, and the carport to be partially demolished and brought into compliance with the development standards, consistent with Item 11 of Schedule 5, I accept that the modified development control order is appropriate. I accept the submission of the Council that the modified development control order reflects the appropriate outcome for the site, as it allows the carport to be brought into compliance with the development standards in a location that reflects the location of the carport prior to the works carried out pursuant to the CDC. I therefore consider it appropriate to exercise the Court’s power to modify the order in accordance with the consent orders and pursuant to s 8.18(4)(b) of the EPA Act.

18. The Court orders that:

1. The appeal is upheld.

2. The development control order issued by the Respondent to the Applicant dated 24 April 2019 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order at Annexure A.

3. Each party shall pay its own costs of these proceedings.

………………………

J Gray

Commissioner of the Court

Annexure A (973 KB, pdf)

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Decision last updated: 20 September 2019