Van Quan Trinh (Peter) v Fairfield City Council [2020] NSWLEC 1676

Land and Environment Court New South Wales

Medium Neutral Citation: Van Quan Trinh (Peter) v Fairfield City Council [2020] NSWLEC 1676 Hearing dates: Conciliation conference on 18 December 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Class 1 Before: Walsh C Decision: Refer to orders below at [16] Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Van Quan (Peter) Trinh (Applicant) Fairfield City Council (Respondent) Representation: Counsel: V Trinh (Litigant in person) (Applicant) J Corradini-Bird (Solicitor) (Respondent)

Solicitors: Marsdens Law Group (Respondent) File Number(s): 2020/178191 Publication restriction: No

Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 being an appeal against the refusal of development application No. 175.1/2019 which in its original form sought consent for what was described on the development application form as "change of use to boarding house and legalising as built illegal works to class 10A for patio, bbq area, storage and amenities and demolition". The site is legally identified as Lot 2 DP 210228 and known as 33 Bareena Street, Canley Vale, NSW. 2. After termination of an initial round of conferencing between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at the request of the parties, a further conciliation conference was arranged and held on 18 December 2020, at which I presided. 3. At the conciliation conference, the parties outlined their agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved seeking leave to rely on amended plans, upholding the appeal and granting development consent to the development application subject to conditions. 4. The development application (as proposed to be amended) would now seek consent for the demolition of the unauthorised dual occupancy, alterations and additions to an existing dwelling house and secondary dwelling, and change of use to a boarding house containing 4 boarding rooms and 1 manager's residence with 3 at-grade car parking spaces, 1 motorcycle space and 2 bicycle spaces. 5. 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 4.16 of the EPA Act to grant consent to the development application. 6. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties provided a statement outlining jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (received by email dated 21 December 2020). Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below.