Land and Environment Court New South Wales Medium Neutral Citation: Cai v Fairfield City Council [2021] NSWLEC 1657 Hearing dates: 15 October 2021 Date of orders: 28 October 2021 Decision date: 28 October 2021 Jurisdiction: Class 1 Before: Bradbury AC Decision: See orders at [41] Catchwords: APPEAL – development control order – demolish works order – building erected without development consent – procedural fairness – order modified Legislation Cited: Environmental Planning and Assessment Act 1979, s 9.34, 8.18 Fairfield Local Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: Wei Cai (First Applicant) Xi Ma (Second Applicant) Fairfield City Council (Respondent) Representation: Counsel: A Cai (Authorised Agent) (Applicants) S Shneider (Solicitor) (Respondent) Solicitors: Houston Dearn O'Connor (Respondent) File Number(s): 2021/118595 Publication restriction: Nil Judgment 1. COMMISSIONER: In the course of investigating a complaint in relation to activities on a neighbouring property, an investigation officer employed by the Fairfield City Council (Council) observed what appeared to him to be an unauthorised dwelling (Building) in the rear yard of the Applicants' property at Lot 9 DP 216835 known as 11 Wadds Avenue Cabramatta (Land). Subsequent investigations confirmed the absence of any development consent for the Building. 2. On 6 April 2021 the Council gave each of the Applicants a development control order (Order) in identical terms which required the demolition of the Building, the disconnection of all associated plumbing and electrical works and the removal of the concrete slab on which the Building had been erected. The Applicants, who are the owners of the Land, have appealed against the Order pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. For the reasons set out in this judgment I have decided to modify the Order to extend the time for compliance to allow a reasonable time for the Applicants to obtain a building information certificate pursuant to Div 6.7 of Part 6 of the EPA Act in relation to the Building and development consent to authorise the future use of the Building. Background 1. The Order was given pursuant to s 9.34(1) of the EPA Act, which allows an Order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. Item 3 in the table allows an Order to be given requiring the demolition or removal of a building where a building requiring planning approval is erected without approval. Such an order can be given to the owner of the building. 2. On 22 March 2021, prior to giving the Order, the Council gave each of the Applicants notice of its intention to give the order. A copy of that notice is attached to the Class 1 Application (Ex A). In accordance with cl 8 of Sch 5 of the EPA Act, the notice included a statement of the Council's intention to give the order, incorporated a copy of the draft development control order (which included the terms of the proposed order), indicated the period proposed to be specified as the period within which the order was to be complied with and gave notice that the Applicants may make representations to the Council as to why the order should not be given or as to the terms of, or period for compliance with, the order. 3. The Applicants made representations to the Council on 4 April 2021 as to why the proposed order should not be given (part of Ex A) and the Investigation Notes of the Council's investigation officer, Mr Sheldon Rodricks, (Ex 5) record his consideration of those representations prior to the giving of the Order. 4. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, as follows: (4) On hearing an appeal, the Court may: (a) revoke the Order, or (b) modify the Order, or (c) substitute for the Order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the Order is sufficiently complied with, or (e) make such order with respect to compliance with the Order as the Court thinks fit, or (f) make such other order with respect to the Order as the Court thinks fit. 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). This was held on 29 June 2021. The parties were unable to reach agreement and the appeal was listed for hearing before me on 15 October 2021. The issues 1. There is little in dispute between the parties on the issues that are directly relevant to the determination of the appeal. 2. There is no dispute between the parties that the erection of Building required development consent and that the Applicants erected the Building without having obtained development consent. 3. The Applicants also acknowledge that they have owned the Land for some 6 or 7 years. 4. The jurisdictional requirements for the giving of the Order have therefore been established and are not in dispute. It remains for the Court, exercising the discretion conferred by s 9.34(1) of the EPA Act, to decide whether the Order should be given and, if so, in what terms. The Applicants' contentions 1. The Applicants contentions may be summarised as follows: 1. The Order was given "without proper investigation and procedure" and without the Council investigation officer entering the Land. 2. The Building is not a secondary dwelling or "granny flat" but is used as a storage shed. 3. The Council did not consider the representations made by the Applicants in response to the Notice of Proposed Order given by the Council. 4. The Council did not give the Applicants an opportunity to resolve the unauthorised building works by, for example, making an application for a building information certificate or for development consent to authorise the use of the Building. 5. Subject to the Order being revoked, the Applicants can lodge a development application with Council for approval of the use of the building and then to apply for a building information certificate. 6. The Building has been assessed to be structurally sound and to comply with relevant building standards and the Building Code of Australia (BCA). 7. The Building does not adversely affect the adjoining occupants and the surrounding environment. The Council's contentions 1. The Council contends that the Order was made following all of the required procedures in the EPA Act and is appropriate given that the Building was erected without development consent and is not otherwise exempt from the need to obtain development consent. It also contends that the Building is unlikely to be structurally sound or meet the requirements of relevant building standards and the BCA. It says that the engineering certification obtained by the Applicants is inadequate and that further certification is required to establish the structural adequacy of the Building. The evidence Applicants' evidence 1. The Applicants' evidence comprised the Class 1 Application (Ex A), their Statement of Facts and Contentions in Reply (Ex B), a document prepared by them described as "Reasons for Objecting Council's Expert Evidence" (Ex C) which included a letter from a consulting engineer concerning the structural adequacy of the building and a bundle containing copies of emails between the Applicants and the Council about the giving of the Order (Ex D). 2. The Applicants' evidence is that the Building is not used for residential purposes but only for storage. They say that they have never met the Council officer who gave the Order. 3. The Applicant's rely on a letter from Michael Li of LatiTech Consulting dated 12 June 2021 (which is part of Ex C). That letter is as follows: "Re Building Structural Works for the Building Addition at Rear of 11 Wadds Avenue Cabramatta NSW 2166 12 June 2021 To whom it may concern Dear Sir/Madam I, Michael Li, as a professional engineer, in accordance with the National Construction Code (NCC), confirm that I have inspected the building addition works at the rear right of the existing building of the abovementioned address, and certify that the building is structurally sound and the building works have been constructed in accordance with AS2870, AS3600, 1684.2 and the NCC. I trust that the above is adequate. Should you require any additional information or any assistance, please do not hesitate to contact the undersigned. Yours sincerely Michael Li Civil/Structural Engineer B Eng, MIE Aust, CP Eng, RPEQ" 1. Despite the inclusion of this letter, which does not comply with the requirements of the Expert Witness Code of Conduct, in the Applicant's written material, the Applicants did not rely on any expert evidence in the appeal and did not call any oral evidence. Council's evidence 1. The Council tendered documentary evidence which comprised: 1. A bundle of documents (Ex 1); 2. An expert report from Mr Grant Milienou, Senior Building Surveyor, Building Control and Compliance at the Council (Ex 2); 3. The Council's statement of facts and contentions (Ex 3); 4. A sketch of the Building made by Mr Milienou (Ex 4); and 5. Investigation notes made by the Council's investigation officer, Mr Sheldon Rodricks (Ex 5). Amongst other things, those notes include the following entry on 6 April 2021: "Email received from the Owners making representation. There is no substance to the context of the rep as they have missed the point of the NOPO for the illegal structure in the first place. My response has been attached. Orders are being issued today. Mr S Rodricks – 06/04/21" 1. The Council's Senior Building Surveyor, Mr Milienou also gave oral evidence and was cross-examined by the Applicants' authorised representative. 2. Mr Milienou's evidence is that a detached dwelling has been constructed in the eastern rear corner of the Land. He says he inspected the Building during the conciliation conference on 29 June 2021 and observed that it comprises timber framed construction on a concrete slab, with fibrous cement cladding and a metal skillion roof. He says that he observed in the Building: a bathroom including sanitary facilities and a shower; a, kitchen including a bench, sink and cooking facilities, two bedrooms and a living room. He was unsure whether the Building included laundry facilities but observed that laundry facilities were available in the main dwelling on the Land. 3. The Land is within Zone R2 Low Density Residential under the Fairfield Local Environmental Plan 2013 (LEP). Development for the purposes of a dwelling house or for a secondary dwelling may be carried out with development consent on land within that zone. In Mr Milienou's opinion the Building should be characterised as a "dwelling" and, because there is already a dwelling house on the Land, as a "secondary dwelling" for the purposes of the LEP. These expressions are defined in the Dictionary of the LEP as follows: dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. secondary dwelling means a self-contained dwelling that— (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. 1. Mr Milienou's evidence is that, even if the Building is used only as a storage shed, development consent would still have been required for its erection. He says that development for the purposes of a storage shed is not exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). This was for two reasons. 2. The first reason, he said, is that the only potentially applicable provision of the Codes SEPP is cl 2.17 which provides that development is exempt development if it consists of the construction or installation of a cabana, cubby house, fernery, garden shed, gazebo or greenhouse. None of those expressions, he says, is apt to describe the use of the Building. The nearest match, he said, was a "garden shed", although he said that, at the time of his inspection, the shed was not being used to store any garden related items. 3. The other reason, he said, is that, even if the Building is taken to be used as a "garden shed", cl 2.18 of the Codes SEPP specifies a maximum floor area of 20m2 for such a shed. Mr Milienou said that, while he had been unable to carry out a precise measurement of the floor area of the Building, he estimated that it was in the order of 60 m2. This was not disputed by the Applicants. 4. In his oral evidence, Mr Milienou also expressed concern about the structural adequacy of the Building. His evidence was that, during his inspection of the Building on 29 June 2021, he observed no sign of a waterproof membrane having been installed under the concrete slab. He explained that this could result in moisture entering the slab and potentially corroding the steel reinforcement contained within it, causing the reinforcement to expand and cracking the slab (an outcome he said is commonly known as "concrete cancer"). He also gave evidence of having observed a "honeycomb" effect in the concrete slab. He said that this indicated to him that the concrete had not been properly compacted and expressed concern that this could undermine the structural adequacy of the concrete slab. He also expressed concerns about whether the frame of the Building had been properly constructed. 5. Finally, Mr Milienou gave evidence that in his opinion the letter from Stephen Li of LatiTech Consulting (part of Ex C) was inadequate to establish the structural adequacy of the Building. He said that the letter did not state when the Building had been inspected and said that he assumed this was post-completion when many aspects of the building work could not have been inspected without destructive testing and removal of building elements. Mr Milienou's evidence is that this testing is not referred to in the letter and the letter does not provide any explanation of the basis for the author's conclusion that the Building is structurally sound. A demolition order should be issued 1. As discussed at pars [9] to [11] above, there is no real issue between the parties in relation to the existence of the statutory basis for the making of the Order. There is no dispute that the erection of Building required development consent and that the Applicants, who own the Land, erected the Building without having obtained development consent. As set out above at sub-pars [13(1)-(7)], the Applicants contend that, for several reasons, the Order should not be given to them. I consider each of the contentions raised by the Applicants below. In doing so I have combined several individual contentions that raised substantially the same issue. Procedural fairness 1. The Applicants contended that the Council had not followed the correct procedure in giving the Order and that they had been denied procedural fairness. This appeared to be because they say the Council did not explain to them how the Council had obtained the evidence on which the Council's decision to give the order was based. I reject the Applicant's contention. The procedural fairness requirements for the giving of a development control order are set out in cll 6 to 8 of Sch 5 of the EPA Act and I find that the Council has complied with those requirements. The notice of the proposed order given by the Council to the Applicants on 22 March 2021 (see par [5] above) contains all of the information required by cl 8 of Sch 5 of the EPA Act. The Applicants in fact made representations to the Council as to why the proposed order should not be given (letter dated 4 April 2021 forming part of Ex A). 2. Clause 7 of Sch 5 of the EPA Act provides that a relevant enforcement authority that complies with cll 2, 8 and 9 and Part 7 of Schedule 5 is taken to have observed the rules of procedural fairness. In this case cl 2, which requires consideration to be given to whether a development control order will, or is likely to make, residents homeless is not relevant as no person currently resides in the Building. Clause 9 also does not apply. As I have found that the requirements of cl 8 have been complied with, the effect of cl 7 is that the Council is taken to have observed the rules of procedural fairness. 3. For completeness, I find that the Council's investigation officer was able to, and in fact did, observe the Building from an adjoining property during the course of investigating a complaint about the use of the adjoining property. There is no requirement in the EPA Act for the investigating officer to have entered the Land in order to be able to take the steps he did to issue the Order. 4. While the Applicants also contended that their representations had not been taken into consideration by the Council prior to them being given the Order, the Investigation Notes of the Council's investigation officer, Sheldon Rodricks, (Ex 5) record his consideration of those representations prior to the giving of the Order. While he did not accept the substance of the Applicants' representations, I am satisfied that they were taken into consideration by Mr Rodricks in deciding whether to give the Order. The characterisation of the purpose for which the Building has been used 1. The Applicants also contended that the Building was not being, and had not been, used as a dwelling but was merely being used as a storage shed. I note that during the course of the hearing the Applicants acknowledged that, regardless of how the use of the Building is to be characterised, they were under no doubt about which building was the subject of the Order and they frankly acknowledged that they had erected the Building without having obtained development consent. 2. On this issue I accept Mr Milienou's uncontradicted evidence that, when he inspected the Building on 29 June 2021, he observed a bathroom (including sanitary facilities and a shower), a kitchen (including a bench, sink and cooking facilities), two bedrooms and a living room. He was unsure about the existence of laundry facilities in the Building. Even without laundry facilities, I am satisfied that the facilities observed by Mr Milienou render the Building capable of being occupied or used as a separate domicile and therefore a "dwelling" within the meaning of the definition in the LEP (see par [22] above). 3. Even if I am wrong about this, I find that the erection of the Building required development consent even if only used as a storage shed. It is clear from the photos attached to the Class 1 Application (Ex A) (and this was confirmed by Mr Milienou in his oral evidence) that the Building is not used to store items used for the purpose of gardening. The photos depict a wide variety of goods including a mattress, umbrellas, suitcases, a cooling fan, a ladder, assorted bags, figurines and other miscellaneous items, none of which are items used in gardening. I find that the Building is not a "garden shed" for the purposes of cl 2.17 of the Codes SEPP. Even if it was, I accept Mr Milienou's unchallenged evidence that the floor area of the Building is in the order of 60m2 and therefore does not comply with the maximum floor area of 20m2 specified in cl 2.18 of the Codes SEPP. There being no other applicable provision of the Codes SEPP, I find that the erection of the Building, even if characterised as a storage shed, is not exempt development and could only be carried out with development consent. No opportunity to resolve the unauthorised works 1. The Applicants also contend that the Council did not give them an opportunity to resolve the unauthorised building works by, for example, making an application for a building information certificate or making a development application to authorise the use of the Building. They say that, subject to the Order being revoked, they can lodge a development application with Council for approval of the use of the building and then apply for a building information certificate. 2. The Applicants could, of course, have done either, or both, of these things at any time and the Order does not need to be revoked to enable them to do so. It is apparent from their evidence, however, that, for whatever reason, their firm belief was that they could not make an application for a building information certificate or a development application while the Order remained in place. While that belief does not provide a proper basis for the revocation of the Order, I have decided that the Order should be modified to give the Applicants a reasonable opportunity to make the applications which, if approved, would remove the need for the demolition of the Building. The evidence indicates that the Building was erected some 6 or so years ago. In those circumstances it is appropriate to allow the Applicants a reasonable opportunity to make the applications which, if successful, would allow the Building to remain. Structural adequacy 1. The Applicants contend that the Building has already been assessed by their structural engineer, Mr Li, to be structurally sound and to comply with relevant building standards and the BCA. The letter from Mr Li, which is included in Ex C, is set out in full at par [17] above. It is concise. It does not explain the basis for Mr Li's opinion that the Building is structurally sound and it is clear that a more detailed report will be required if the Applicants are to be successful in persuading the Council that a building information certificate should be issued for the Building and development consent granted for its use. The letter from Mr Li, without more, does not satisfy the Court that the Building is structurally adequate and does not provide a proper basis for the revocation of the Order. Amenity impacts 1. Finally, while I accept the Applicants' evidence that the Building "does not adversely affect the adjoining occupants and the surrounding environment", that, of itself, does not warrant the revocation of the Order. Outcome of the appeal 1. The appeal should be upheld, and orders made to modify the Order to enable the Applicants a reasonable opportunity to obtain a building information certificate for the Building and to make a development application for development consent to authorise its future use. The modified order will, however, require the demolition of the Building if the Applicants are unable to obtain the building information certificate and development consent. Orders 1. The Court orders: 1. The Appeal is upheld. 2. The Development Control Order issued to each Applicant on 6 April 2021 by Fairfield City Council in relation to the land described as Lot 9 DP 216835 known as 11 Wadds Avenue Cabramatta (Order), is varied as follows: 1. The words "granny flat" wherever appearing are replaced with the word "secondary dwelling"; 2. Order 3 is amended to replace the words "On or before 7 May 2021, you are required to do the following" with the following: "On or before 30 April 2022, unless: 1. Development consent is granted for the use of the secondary dwelling; and 2. A building information certificate under Div 6.7 of Part 6 of the Environmental Planning and Assessment Act 1979 has been issued in relation to the secondary dwelling, you are required to do the following:" 1. The Applicants have liberty to apply to extend the timeframe provided for compliance with the Order where reasonable steps have been taken to comply with the Order. ………………………. A Bradbury Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2021