Xue v City of Parramatta Council

[2024] NSWLEC 1507

Land and Environment Court

New South Wales

Medium Neutral Citation:

Xue v City of Parramatta Council [2024] NSWLEC 1507

Hearing dates:

Conciliation Conference 9, 30 April, 15 May, 19 June, 10 July, 1 August 2024

Date of orders:

22 August 2024

Decision date:

22 August 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

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 Development Control Order dated 12 October 2023, relating to works at Lot 1 in Deposited Plan 189491 and known as 102 Eastwood Avenue, Epping, issued by the respondent to the applicant, is substituted with the following orders:

(a) The applicant must carry out the following repair works within nine months of the date of these orders:

(i) demolish and remove the section of awning shown on plan No A7 dated June 2024 in Annexure A;

(ii) replace the removed awning as shown on plans A1, A2, A3, A4, A5 and A6 dated November 2023 in Annexure A; and

(iii) repair or replace the stairs to the rear deck so as to comply with cl 11.2.2 “Stairway construction” of the National Construction Code 2022 or deemed to satisfy provisions.

(b) The applicant must remove and replace the shower screen glazing with a shower screen that is compliant with Australian Standard AS1288 and provide evidence of glazing certification to the respondent within one month of the date of these orders.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.10, 8.18, 9.34, Sch 5, Pt 1

Land and Environment Court Act 1979, ss 17, 34

Parramatta Local Environmental Plan 2023

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Texts Cited:

Parramatta Development Control Plan 2023

National Construction Code 2022

Category:

Principal judgment

Parties:

Pengcheng Xue (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
M McKee (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2023/348034

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order (Council ref: 292150 dated 24 October 2023) issued by the respondent under s 9.34(1) and Part 1 of Schedule 5 of the EPA Act (DCO) to the applicant in relation to land identified as Lot 1 in Deposited Plan 189491 and known as 102 Eastwood Avenue, Epping (Site). The DCO comprised Order No. 3 – Demolish Works Order, which required the demolition and removal of the internal works to the existing garage and the timber deck and associated veranda constructed at the rear of the dwelling, and Order No. 10 – Restore Works Order, which required the reinstatement of the garage to the condition it was in prior to the unauthorised works and the reinstatement of the landscaped area in the rear yard upon which the timber deck and veranda were constructed.

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 zoned R2 Low Density Residential under the Parramatta Local Environmental Plan 2023 (PLEP) and located within the East Epping Conservation Area under the Parramatta Development Control Plan 2023 (PDCP).

4. The Site is owned by the applicant.

5. At the time the DCO was issued, the following works had been carried out at the Site (collectively, the Works):

1. the construction of a timber deck and veranda at the rear of the dwelling; and

2. building works to alter and convert an existing attached garage to a habitable bedroom with ensuite.

6. It was the respondent’s contention that these Works:

1. were constructed without consent and were unlawful;

2. were not exempt development pursuant to the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008;

3. could not be determined to be compliant with relevant building standards set by the National Construction Code 2022 (NCC);

4. had potentially caused the Site to not comply with objectives and development controls related to landscaping;

5. had not been subject to an assessment process to determine permissibility;

6. had not had an assessment of impact in terms of privacy or overlooking of adjacent dwellings; and

7. had not established whether the garage conversion complied with objectives and development controls relating to internal amenity.

7. The respondent issued a Notice of Intention to Issue an Order on 14 September 2023 (Notice).

8. Following a response to the Notice on behalf of the applicant, the DCO was issued on 12 October 2023.

9. The applicant commenced Class 1 proceedings on 2 November 2023, being within the time period specified in s 8.18(3) of the EPA Act.

10. Separately, on 28 May 2024, the applicant lodged a Building Information Certificate (BIC) application with the respondent seeking to regularise parts of the deck/veranda and garage conversion (BIC Application).

11. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 9 April 2024 and adjourned on multiple occasions. I presided over the conciliation conference.

12. During the conciliation process, the parties reached agreement as to the resolution of the proceedings. It was agreed that due to the steps taken by the applicant to obtain a BIC, the only issue in dispute was the awning and stairs associated with the deck/veranda and the shower screen glazing in the converted garage. The agreement reached is for the DCO to be substituted (Substituted Order). The Substituted Order generally requires the applicant to undertake the following works:

1. the repair or structural alteration of the deck/veranda to make it structurally sound/safe within nine months, including:

1. demolition and removal of the section of awning shown on plan No A7 dated June 2024;

2. the replacement of the removed awning as shown on plans A1, A2, A3, A4, A5 and A6 dated November 2023;

3. repair or replacement of the stairs to the rear deck to comply with cl 11.2.2 “Stairway construction” of the NCC 2022 or deemed to satisfy provisions.

2. the removal and replacement of the shower screen glazing in the converted garage with a shower screen that is compliant with AS1288 within one month.

13. The parties provided a signed s 34 agreement reflecting the above agreement on 9 August 2024 with an accompanying jurisdictional statement.

Jurisdictional considerations

14. To make orders in accordance with the parties’ agreement, I must be satisfied that the decision to make orders substituting the DCO 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 DCO should be substituted in the manner proposed by the parties on the basis that:

1. The Substituted Order is agreed by the parties to be issued pursuant to Item 5 of Pt 1 of Sch 5 of the EPA Act, being a “Repair Order”. The applicant is the owner of the buildings the subject of the Substituted Order such that the applicant is able to be issued with the Substituted Order pursuant to Column 3 of Pt 1 of Sch 5 of the EPA Act. I note that the applicant was also able to be issued with the original DCO on the basis that it was the “owner of the building” for the purposes of Order No 3 and the “owner of the premises” for the purposes of Order No 10.

2. The works required to repair the deck/veranda and alterations to the shower in the converted garage will mean that the building is not, or is not likely to become, a danger to the public, or so dilapidated that it is prejudicial to the occupants. The works the subject of the Substituted Order therefore fall within the scope of Item 5 of Pt 1 of Sch 5 of the EPA Act and are in accordance with s 9.34 of the EPA Act.

3. The parties have submitted that the works the subject of the Substituted Order (in conjunction with the BIC Application) resolve the respondent’s concerns in relation to the unauthorised Works.

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

19. 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 Development Control Order dated 12 October 2023, relating to works at Lot 1 in Deposited Plan 189491 and known as 102 Eastwood Avenue, Epping, issued by the respondent to the applicant, is substituted with the following orders:

1. The applicant must carry out the following repair works within nine months of the date of these orders:

1. demolish and remove the section of awning shown on plan No A7 dated June 2024 in Annexure A;

2. replace the removed awning as shown on plans A1, A2, A3, A4, A5 and A6 dated November 2023 in Annexure A; and

3. repair or replace the stairs to the rear deck so as to comply with cl 11.2.2 “Stairway construction” of the National Construction Code 2022 or deemed to satisfy provisions.

2. The applicant must remove and replace the shower screen glazing with a shower screen that is compliant with Australian Standard AS1288 and provide evidence of glazing certification to the respondent within one month of the date of these orders.

N Targett

Commissioner of the Court

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Annexure A

Decision last updated: 22 August 2024