Paceskoski v Fairfield City Council [2022] NSWLEC 1008

Land and Environment Court New South Wales

Medium Neutral Citation: Paceskoski v Fairfield City Council [2022] NSWLEC 1008 Hearing dates: Conciliation conference on 12 October, 3 November, and 13 December 2021 Date of orders: 13 January 2022 Decision date: 13 January 2022 Jurisdiction: Class 1 Before: Peatman AC Decision: See orders at [11]-[12] below. Catchwords: DEVELOPMENT CONTROL ORDERS– stop use – demolish - erection of secondary dwelling not in accordance with approval – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.2, 6.4, 8.18, 9.30, 9.34, Sch 5, Pt 1 Fairfield Local Environment Plan 2013 Land and Environment Court Act 1979, ss 17, 34, 39 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Robert Paceskoski (First Applicant) Zana Paceskoski (Second Applicant) Fairfield City Council (Respondent) Representation: Counsel: M Hanna (Solicitor)(Applicant) S Shneider (Solicitor)(Respondent)

Solicitors: Project Lawyers (Applicant) Houston Dearn O'Connor (Respondent) File Number(s): 2021/171860 and 2021/171859

Judgment 1. COMMISSIONER: The Applicants are appealing two Development Control Orders (DCOs) served by Fairfield City Council (Council) on 18 May 2021 in relation to the Applicant's property at 11 Hemphill Avenue, Mt Pritchard NSW being the whole of the land in Lot 2 Deposited Plan 557415 (the Land). In summary the two DCOs are as follows: 1. Proceedings No. 2021/171860 relate to the DCO served pursuant to s 9.34(1)(a) and Sch 5 Pt 1 – General Orders – Order No. 1 of the Environmental Planning and Assessment Act 1979 (EPA Act), requiring the Applicants to stop "the outbuilding use" carried out within a detached dwelling on the Land, for the habitable purpose as a separate dwelling house, and to contact the assigned Council officer to inspect the premises to ensure the use has stopped to Council's satisfaction (First DCO). 2. Proceedings No. 2021/272859 related to the DCO served pursuant to s 9.30(1)(1)(a) and Sch 5 Pt 1 – General Orders – Order No. 3 of the EPA Act, requiring the Applicants to demolish and remove all parts of the outbuilding constructed within the rear yard of the Land, including all demolition waste, spoil and debris, and to contact the assigned Council officer to inspect the premises to ensure the work has been carried out to the Council's satisfaction (Second DCO). 1. The Applicants appealed both DCOs in accordance with s 8.18(1)(a) and within the time period of 28 days as provided by s 8.18(3)(a) of the EPA Act. 2. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 3. The statutory power or function to be exercised in determining the proceedings is s 8.18(4) of the EPA Act and ss 34(3) and 39(2) of the LEC Act. 4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 October, 3 November and 13 December 2021. I presided over the conciliation conference. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding both appeals, and modifying both DCOs. 6. 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 8.18(b) of the EPA Act, and ss 34(3) and 39(2) of the LEC Act, to modify the 2 DCOs.