Land and Environment Court New South Wales Medium Neutral Citation: Cai v Fairfield City Council [2022] NSWLEC 58 Hearing dates: 4 April 2022 Date of orders: 13 May 2022 Decision date: 13 May 2022 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: (1) The appeal is dismissed. (2) The appellants are to pay the respondent's costs of the appeal as agreed or assessed. Catchwords: APPEAL – appeal against Commissioner's decision –building erected without consent – demolish works order – Commissioner modified order – whether order given in breach of required process – whether order justified on the evidence – whether Commissioner's modification of order involved error of law Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.2, 8.18, 9.34, Sch 5 Fairfield Local Environmental Plan 2013 Fairfield City-wide Development Control Plan 2013 s 5B.2.5 Land and Environment Court Act 1979 s 56A Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Council of the City of Sydney v Vision Land Glebe Pty Ltd (2019) 243 LGERA 25; [2019] NSWLEC 60 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Category: Principal judgment Parties: Wei Cai (First appellant) Xi Ma (Second appellant) Fairfield City Council (Respondent) Representation: Counsel: E Cai (Authorised Agent) (Appellants) S Schneider (Solicitor) (Respondent) Solicitors: Houston Dearn O'Connor (Respondent) File Number(s): 2021/333619 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2021] NSWLEC 1657 Date of Decision: 28 October 2021 Before: Bradbury AC File Number(s): 2021/118595 Judgment 1. Mr Wei Cai and Mrs Xi Ma (the appellants) erected and are using a building in the rear yard of their property at 11 Wadds Avenue, Cabramatta. The erection and use of the building was and is unlawful. Development consent was required to be obtained but was not obtained for the erection and use of the building. The appellants thereby have breached and continue to breach s 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). 2. Fairfield City Council (the Council) gave a development control order under s 9.34(1)(a) and Part 1 of Schedule 5 of the EPA Act to the appellants. The order was a Demolish Works Order under Item 3 of the Table in Part 1 of Schedule 5. The Demolish Works Order was given on 6 April 2021 to each of the appellants and required them to demolish the building by 7 May 2021. The reason for the order was that the erection of the building required development consent but the building was erected without obtaining development consent. The Council did not give the appellants a Stop Use Order under Item 1 of the Table in Part 1 of Schedule 5 requiring the appellants to stop using the building. A Stop Use Order can be given where premises are being used for a purpose for which development consent is required but has not been obtained. 3. The appellants appealed to the Court under s 8.18(1) of the EPA Act against the Demolish Works Order. The appeal was heard and determined by Acting Commissioner Bradbury: Cai v Fairfield City Council [2021] NSWLEC 1657. The Commissioner modified the Demolish Works Order (as permitted under s 8.18(4)(b) of the EPA Act) in two respects: "(a) The words 'granny flat' wherever appearing are replaced with the word 'secondary dwelling'; (b) 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: (i) Development consent is granted for the use of the secondary dwelling; and (ii) 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'.": at [41] of the Commissioner's judgment. 1. The appellants have appealed under s 56A(1) of the Land and Environment Court Act 1979 (NSW) (Court Act) against the decision and orders of the Commissioner on a question of law. The appellants are not represented by a legal practitioner. They have sought, and the Court has granted, leave for their son, Mr Edward Cai, to act as their agent in the appeal. 2. In the summons commencing the appeal, the appellants stated that they appeal against the part of the Commissioner's decision and orders that modified the Demolish Works Order to replace the words "granny flat" with the words "secondary dwelling" and to make the operation of the order for demolition of the building conditional on the appellants not obtaining development consent for the use of the secondary dwelling and a building information certificate in relation to the secondary dwelling. 3. In their written and oral submissions, the appellants expressed multiple concerns about the Commissioner's decision and orders, although these concerns were not expressed in terms of being errors on questions of law. Nevertheless, I distil from the appellants' submissions three respects in which they complain that the Commissioner erred on a question of law in so modifying the Demolish Works Order: 1. the Commissioner erred in not finding that the Demolish Works Order was given in breach of the required process for giving a development control order (the process ground); 2. the Commissioner erred in finding on the evidence before the Court that the building was being used as a secondary dwelling (the evidence ground); and 3. the Commissioner erred in modifying the Demolish Works Order to refer to "secondary dwelling" rather than "granny flat" and to require the appellants to obtain development consent to use the building as a secondary dwelling and a building information certificate in relation to the secondary dwelling in order to avoid demolishing the building (the secondary dwelling ground). 1. I find the appellants have not established the process ground, the evidence ground or the secondary dwelling ground. The appeal should be dismissed with costs. The process ground 1. At the hearing of the appeal before the Commissioner, the appellants had argued that the Council had not followed the proper process for issuing the Demolish Works Order to the appellants. The appellants had argued that the Council, before issuing the notice of proposed order and the Demolish Works Order itself, was required to, but did not, make arrangements with the appellants to enter the property to inspect the building, meet with and speak to the appellants, and give the appellants an opportunity to regularise the lawfulness of the building by applying for development consent to use the building for a lawful purpose and to apply for a building information certificate in relation to the building. The appellants also argued that the Demolish Works Order was issued without considering the appellants' representations in response to the notice of proposed order and without undertaking a proper investigation. Implicit in the appellants' arguments was the assertion that the Demolish Works Order had been incorrectly issued and was therefore not a valid order. 2. The Commissioner identified and dealt with these arguments that the order was given without proper investigation and procedure: at [13(1)], [29]-[32] of the Commissioner's judgment. The Commissioner found that, in giving the Demolish Works Order to the appellants, the Council had followed the correct procedure for giving a development control order in Schedule 5 of the EPA Act. 3. The Commissioner found that the jurisdictional requirements for giving the Demolish Works Order under Item 3 of the Table in Part 1 of Schedule 5 were satisfied. The building required development consent but had been erected without development consent: at [4], [10], [12]. The order was given to the appellants who are the owners of the land: at [4], [11], [12]. The order was to demolish the building: at [4], [12]. 4. The Commissioner found that the Council, before giving the Demolish Works Order, had complied with the natural justice requirements of cll 2, 8 and 9 and Part 7 of Schedule 5 of the EPA Act, as required by cl 6(1) of Schedule 5: at [29] of the Commissioner's judgment. The Council gave notice to the appellants of the proposed order as required by cl 8(1) of Schedule 5. The notice of the proposed order given by the Council to the appellants on 22 March 2021 contained all of the information required by cl 8 of Schedule 5, including inviting the appellants to make representations as to why the order should not be given or as to the terms of or period for compliance with the order: at [5], [29]. The Commissioner found that the appellants had made representations to the Council, in their letter of 4 April 2021, as to why the proposed order should not be given: at [29]. 5. The Commissioner found that neither cl 2 nor cl 9 of Schedule 5 applied, as no person was residing in the building who could be rendered homeless by the order and there were no other consent authorities or principal certifiers to whom notice was required to be given: at [30]. As to Part 7 of Schedule 5, the Commissioner found that the appellants had made representations concerning the proposed order, as permitted by cl 13 of Schedule 5, and the Council had considered the appellants' representations, as required by cl 14 of Schedule 5: [29], [32]. 6. The Commissioner found that the Council, having complied with cll 2, 8 and 9 and Part 7 of Schedule 5 (insofar as those provisions were relevant), was taken to have observed the rules of procedural fairness, by cl 7 of Schedule 5: at [30] of the Commissioner's judgment. 7. Insofar as the appellants had argued that there had not been a proper investigation, the Commissioner found that the Council's investigating 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. The Commissioner noted, however, that there was 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 take to issue the Demolish Works Order: at [31] of the Commissioner's reasons. 8. On appeal from the Commissioner's decision, the appellants argued that the Commissioner erred in finding that the Council had followed the correct procedure for giving the Demolish Works Order. As best I understand their argument, their contentions were twofold. 9. First, the appellants contended that the Council had not complied with the statutory requirements in Schedule 5 of the EPA Act for giving a development control order because the Council had not properly considered the representations made by the appellants concerning the proposed order. The appellants had advised in their representation of 4 April 2021 to the Council that the building was used for storage purposes and not as a secondary dwelling. The appellants stated, amongst other things: "Granny flat is generally a self-contained dwelling/accommodation within, attached or separate to an individual home. Granny flat allows owners to keep family members within the same property while giving their own space and they must be under safe living conditions. The building structure at the rear yard of 11 Wadds Avenue Cabramatta which the Council officer saw while investigating another matter is not a granny flat. It does not provide accommodation for people. The structure itself does not cause any adverse impacts to the neighbouring properties. After reviewing the order proposed by Council, the order for an unauthorised granny flat should not be given because it has been used as a storage area rather than a granny flat." 1. The appellants submitted on this appeal that the Council officer, in response to this representation, should have made attempts to enter and inspect the building on the site, prior to issuing the Demolish Works Order in order to ensure that the terms of the order reflected the actual use of the building. However, the Council officer did not make any attempt to inspect the building before giving the order. The disconformity between the terms of the order given by the Council and the actual use of the building reveals that the Council had not considered the appellants' representation. 2. The Council contested that it had not considered the appellants' representation before giving the Demolish Works Order. The Council submitted that evidence of the Council's consideration was before the Commissioner, including a Council officer's note of 6 April 2021, recording receipt of the appellants' representation of 4 April 2021 and commenting on it and the Council's email of 6 April 2021 to the appellants saying that the Council "makes note of your comments about the use of the structure" and responding to the comments. The Council submitted it was open on the evidence for the Commissioner to find that the Council did consider the appellants' representation before giving the Demolish Works Order. 3. I do not agree with the appellants' first contention. The question of whether or not the Council had considered the representation by the appellants was a question of fact. The Commissioner found that the Council officer did consider the appellants' representation before giving the Demolish Works Order: at [32]. The Council officer had recorded in his note dated 6 April 2021 his consideration of the appellants' representation, which was attached to the appellants' email of 4 April 2021. The Council officer noted in part: "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. This note of the Council officer needs to be read in the context of the notice of proposed order that was given to the appellants. The proposed order, of which notice was given, was a Demolish Works Order, not a Stop Use Order. The appellants' representation dealt with the use of the building, asserting that the use was as a storage area not as a secondary dwelling, but did not address the illegal erection of the building. This explains the Council officer's note that the appellants "have missed the point of the NOPO for the illegal structure in the first place." 2. The Council officer's response attached to the order was in an email dated 6 April 2021 to the appellants and referred to their representation emailed on 4 April 2021. The response stated in part: "Thank you for your email regarding the use and purpose of the structure at the rear of the property at 11 Wadds Avenue, Cabramatta. Council makes note of your comments about the use of the structure. However, the Order will be issued as the structure itself has no planning approval from Council and is therefore deemed Unauthorized as it does not comply with the current requirements under legislation." 1. The Commissioner found that the Council officer, while he did not accept the substance of the appellants' representation, did take into consideration the appellants' representation in deciding whether to give the order: at [32]. That finding was open to the Commissioner on the evidence of the Council officer's note and response to the appellants. No error of law in so finding has been demonstrated. 2. The appellants' second contention was that, in addition to the statutory requirements in Schedule 5 of the EPA Act for giving a development control order, the Council was obliged to take the additional steps of inspecting the building, meeting with and speaking to the appellants, and giving the appellants an opportunity to regularise the lawfulness of the building. The source of that obligation was not identified, but I assume it is the common law rules of procedural fairness. 3. The Commissioner found that the Council had complied with the rules of procedural fairness in issuing the Demolish Works Order. The Commissioner referred to cl 7 of Schedule 5 of the EPA Act in finding that the Council, in complying with cll 2, 8 and 9 and Part 7 of Schedule 5, was taken to have observed the rules of procedural fairness: at [30]. The Commissioner further found that there was no obligation under the EPA Act for the Council to have inspected the building before issuing the Demolish Works Order: at [31]. 4. The Council submitted that the Commissioner made no error in finding that once the requirements of cl 8 of Schedule 5 have been complied with, the effect of cl 7 of Schedule 5 is that the Council is taken to have observed the rules of procedural fairness. The Commissioner was therefore correct in finding that the Council did not deny the appellants procedural fairness in giving the Demolish Works Order. 5. I find that the Commissioner did not err on a question of law in finding that there was no denial of procedural fairness. The Council was not required by the procedure prescribed in Schedule 5 for the giving of a development control order to have inspected the inside of the building. The Council did need to be satisfied that the jurisdictional requirements for the giving of the Demolish Works Order under Item 3 of the Table in Part 1 of Schedule 5 had been met, but this did not necessitate carrying out an inspection of the inside of the building. The jurisdictional requirement in Item 3 was that the erection of the building required development consent and that the building had been erected without development consent. Satisfaction of this jurisdictional requirement in the circumstances of this case was able to be achieved simply by observation of the exterior of the building on the land on which it had been erected. Ascertaining the use to which the building was being put did not assist in determining whether development consent was needed, but had not been obtained, for the erection of the building. In these circumstances, the Council did not deny the appellants procedural fairness by not inspecting the inside of the building in order to ascertain the use to which the building was being put. 6. The Commissioner also did not err on a question of law in finding that the Council's compliance with the relevant provisions of Schedule 5 satisfied the rules of procedural fairness (as cl 7 of Schedule 5 of the EPA Act states). Under cll 8, 13 and 14 of Schedule 5, the Council was required to give notice of the proposed order, to invite the appellants to make representations as to why the order should not be given or as to the terms of the order, and to consider any representations the appellants might make before giving the order. By the Council complying with these requirements, it was taken to have observed the rules of procedural fairness. There was no additional requirement that the Council meet with and speak to the appellants, either on site or elsewhere. 7. The Council was also not obliged to give the appellants an opportunity to regularise the lawfulness of the building before issuing either the notice of proposed order or the Demolish Works Order itself. The giving of the notice of the proposed order might, of course, have prompted the appellants to have made a representation that they be given an opportunity to apply for development consent to use the illegally erected building and a building information certificate in relation to the illegally erected building. The appellants did not do so. The appellants' representation simply stated that "the order for an unauthorised granny flat should not be given because it has been used as a storage area rather than a granny flat". The representation did not ask that the period for compliance with the order be extended to allow the appellants to make an application for development consent to use the building for storage purposes or for a building information certificate. The Council did not deny the appellants procedural fairness by not expressly inviting the appellants to make such applications in order to regularise the lawfulness of the building. 8. For these reasons, the appellants have not established that the Commissioner erred on a question of law in not finding that the Council had given the Demolish Works Order in breach of the required statutory process or the rules of procedural fairness. The evidence ground 1. At the hearing before the Commissioner, the appellants had argued that the evidence was insufficient to establish that the building was being used as a dwelling. The appellants argued that the building was instead being used as a storage area. The appellants filed a submission dated 27 April 2021 entitled "Reasons for appealing against Council's development control order", asserting that the building was a storage area and attaching photographs of the storage area. The photographs depicted household effects stored in the building. The appellants argued that the Council's evidence did not establish that the building was being used as a secondary dwelling. The Council officer had not inspected the inside of the building before issuing the Demolish Works Order so that he could not know what was the actual use of the building. The first time the Council officer entered the building was during the conciliation conference arranged by the Court on 29 June 2021. The Council officer did not take any photographs of what he saw on that occasion. The Council officer's report tendered at the hearing did not provide photographic evidence showing that the building contained features necessary for the building to be a dwelling. The appellants asserted that, in oral evidence at the hearing, the Council officer could not recall whether he saw cooking facilities, a sink or a kitchen on the day of the conciliation conference. The Council officer prepared a sketch of the interior of the building in which certain areas of the building were ascribed names such as "bedroom", "living room", "bathroom" and "kitchen" but these were the Council officer's opinions as to the use of these areas rather than the fact of the use. 2. The Commissioner addressed the appellants' submission that the building was not being used as a dwelling but was merely being used as a storage area: at [33]-[35] of the Commissioner's judgment. The Commissioner accepted what he said was the "uncontradicted" evidence of the Council officer that when he inspected the building on 29 June 2021 during the conciliation conference, "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" but he "was unsure about the existence of laundry facilities in the Building": at [34] of the Commissioner's judgment. 3. The Commissioner found that the facilities observed by the Council officer "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 Fairfield Local Environmental Plan 2013 (LEP): at [34]. 4. The definition of "dwelling" in the Dictionary to the LEP is "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": see at [22] of the Commissioner's judgment. 5. On this appeal against the Commissioner's decision, the appellants submitted that the Commissioner erred because there was insufficient evidence to suggest that the building was being used as a dwelling. The appellants asserted that the Council officer's sketch of the interior of the building did not reflect what actually existed at the site. The appellants asserted that the building does not contain "kitchen, sink, bench, cooking facilities, bathroom, sanitary facilities, shower, bedroom and a living room", which is totally different to what the Council officer had stated in his evidence. The appellants repeated what they had submitted to the Commissioner that, in his oral evidence, the Council officer could not recall whether he saw the cooking facilities, sink or kitchen on the day of the conciliation conference and that he had provided no photographic evidence to support his opinions as to the different uses to which each of the areas within the building are being put. To the contrary of the Council's evidence, the appellants submitted the entire space of the building is set up as a storage area. That is evident from the photographs of the interior of the building that the appellants had tendered, which showed only storage of household effects and not the features or facilities of a dwelling. 6. The Council submitted that there was evidence on which the Commissioner could find that the building was a dwelling in that it was so constructed or adapted as to be capable of being occupied or used as a separate domicile. There was no error in the Commissioner making this finding. Further, the Commissioner's finding was one of fact and not law. 7. I find that the appellants have not established that the Commissioner erred on a question of law in finding that the building was a dwelling within the meaning of the definition in the LEP. I have two reasons. 8. The first reason is that the Commissioner's finding was one of fact. There was some evidence on which the Commissioner's factual finding was based, being the evidence of the Council officer. It may be accepted that the appellants had challenged the adequacy of that evidence, but it was a matter for the Commissioner to decide whether to accept or reject the evidence and the weight to be placed on the evidence. It may also be accepted that the appellants had adduced other evidence showing that the building did not contain certain features of a dwelling and the building was being used as a storage area. Again, however, it was a matter for the Commissioner to decide whether to accept or reject that evidence and the weight to be placed on that evidence. 9. A commissioner does not make an error of law in preferring the evidence of one witness over that of another or in making findings of fact or drawing inferences of fact based on some evidence rather than other evidence. If there is evidence of a fact, the question whether that evidence ought to be accepted in whole or part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Council of the City of Sydney v Vision Land Glebe Pty Ltd (2019) 243 LGERA 25; [2019] NSWLEC 60 at [84]. Similarly, to make a finding of fact that is against the weight of the evidence is also to make an error of fact not law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. Even if the finding of fact were to be perverse or unreasonable or the reasoning whereby the finding of fact was reached was demonstrably unsound, there still would not be an error on a question of law: Azzopardi v Tasman UEB Industries Ltd 155-156; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334; Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [197]-[201]; RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [73]. 10. The second reason is that, contrary to the appellants' submission, the Commissioner did not find that the building was actually occupied or used as a separate domicile, only that the building was capable of being occupied or used as a separate domicile: at [34]. There are two limbs in the definition of "dwelling". The first limb is that a room or suite of rooms is "occupied or used" as a separate domicile and the second limb is that the room or suite of rooms is "so constructed or adapted as to be capable of being occupied or used" as a separate domicile. The Commissioner relied on the second limb not the first limb to find that the building was a dwelling. He found, based on the evidence of what the Council officer had observed, that the interior of the building had been so constructed or adapted as to be capable of being occupied or used as a separate domicile. On this basis, it mattered not whether the building was actually being occupied or used as a separate domicile, or was instead being used as a storage area as the appellants had suggested. The fact that the building might not be currently occupied or used as a separate domicile did not take away from the fact that the building had been so constructed and adapted as to be capable of being occupied or used as a separate domicile. Again, that finding of the Commissioner was one of fact. The factual finding had an evidentiary foundation in the evidence of the Council officer. Even if it were to be incorrect, no error of law arises. 11. For these reasons, the appellants have not established that the Commissioner erred on a question of law in the ways raised in the evidence ground. The secondary dwelling ground 1. The final ground of appeal concerned the Commissioner's order modifying the Demolish Works Order to replace the words "granny flat" with the words "secondary dwelling" wherever occurring (in order (2)(a)) and to make the order for demolition of the building conditional upon development consent not being granted "for use of the secondary dwelling" and a building information certificate under Div 6.7 of Part 6 of the EPA Act not being issued "in relation to the secondary dwelling" (in order (2)(b)). 2. The first modification caused the Demolish Works Order to require the appellants to: "Demolish: 1. The entire structure of the secondary dwelling; 2. Disconnect all the plumbing and electrical works installed for the secondary dwelling; 3. Remove any concrete slab (footing) poured for the granny flat; and 4. Contact the assigned Council officer to inspect the premises to ensure work has been carried out to Council's satisfaction." 1. The second modification caused the Demolish Works Order to demolish the secondary dwelling not to operate only if, before the date by which the secondary dwelling is required to be demolished, development consent is granted for the use of the secondary dwelling and a building information certificate has been issued in relation to the secondary dwelling. 2. The appellants submitted that the Commissioner's modification of the Demolish Works Order in these ways had four consequences. First, there was no utility in replacing one description in the Demolish Works Order of the purpose of the use of the building with another description. A granny flat is a type of secondary dwelling; the two uses have the same meaning. The Commissioner's modification of the language of the order therefore served no purpose. Second, the modification of the language of the order, to replace wherever occurring the words "granny flat" with the words "secondary dwelling", caused the order in effect to declare that the use of the building was for the purpose of secondary dwelling, when in fact the use was for storage purposes. Third, this made performance of the order impossible. The appellants cannot demolish the entire structure of the "secondary dwelling", disconnect plumbing and electrical works installed for the "secondary dwelling" or remove any concrete slab poured for the "secondary dwelling" if the building is not a secondary dwelling because it does not have the features and facilities necessary to be a secondary dwelling. To demolish a building that is not a secondary dwelling would not comply with the order requiring demolition of the secondary dwelling. Fourth, the Commissioner made the order for demolition of the building conditional on the appellants not obtaining development consent to use the building as a secondary dwelling and a building information certificate in relation to the secondary dwelling, which compelled the appellants to apply for a use of the building that they did not wish to carry out and for which they were unlikely to obtain consent. 3. The appellants did not identify how the Commissioner's order modifying the Demolish Works Order in these ways, even if it did have these consequences, involved an error of law. 4. I raised at the hearing of the appeal whether the Commissioner's modification of the Demolish Works Order in his judgment had denied the appellants procedural fairness. I gave the parties an opportunity to obtain a copy of the transcript of the hearing before the Commissioner and to make further submissions. 5. The appellants in their further written submissions accepted that the Commissioner "did not deny the parties procedural fairness for the parties to be heard on the modifications of the demolition works order [sic] he proposed to make." The appellants referred instead to the consequences of the Commissioner's modification of the Demolish Works Order to which I have earlier referred and reiterated their submissions on the process ground and the evidence ground. 6. The Council in its further written submissions noted that the Commissioner did expressly raise at the end of the hearing the possibility of him varying the Demolish Works Order to allow the appellants to apply for development consent and a building information certificate. The exchange between the Commissioner and Mr Cai on behalf of the appellants was in the following terms: "COMMISSIONER: Mr Cai, there's something I need to raise because - so one of the options that is available to me and I haven't made a decision yet so I'm just sort of flagging this as one of the possibilities, but one of the possibilities would be for me to vary the order that has been made by the council so that it requires the building to be demolished by a certain date which I'll specify, but not if in the meantime you have obtained development consent to use the building and the building information certificate to regularise its unlawful construction. If I was to do that, can you tell me whether your parents would make an application for a development consent and for a building information certificate? CAI: Yes we can consider doing a development application but would that be classified as a secondary dwelling though in that case? Or do we have the opportunity to I guess say that it's used as a storage instead of a secondary dwelling? COMMISSIONER: There are sort of two aspects to it. One would be to apply for a building information certificate which would allow the building to remain if it was approved. The second would be for you to make a development application for the use of the building and it's really up to you or your parents to nominate the use that you want approval for and the council will then consider that application and either approve it or refuse it. If the application is to use it as a secondary dwelling, then it would need to comply with the requirements that the council has for secondary dwellings. CAI: If I going to apply for use of a storage, would council consider that too? COMMISSIONER: The council is required to consider any application that you make. It may have some - it may require some changes to be made to the building if it was to be used just as a storage shed but that's a matter for the council and for a later application. All I'm dealing with at the moment though is should I leave the order as it is or should I vary it? If as you say to me that your parents will make an application for a building information certificate and a development consent to use the building, one of the possibilities that - or one of the options that's available to me is to make an order that allows some time for that to happen before the building is required to be demolished. So that if those things are obtained, then the building wouldn't need to be demolished. So is there anything you'd like to say to me about that as an option? CAI: Yes, the applicants will consider getting development consent and applying for a building information certificate as a storage shed. So yes we're happy for the I guess the variation verifying the - maybe modifying the order. 1. Before the Commissioner, the Council opposed the Demolish Works Order being modified to make the demolition of the building conditional on the appellants not obtaining a building information certificate and a development consent. The Council did not oppose the date given in the order by which the building is to be demolished being extended to allow for applications for a building information certificate and a development consent to be made, but submitted that the wording of the order should not be modified expressly to allow for this to happen (T28, 30). 2. In its further written submissions to this Court, the Council submitted that this exchange reveals that the Commissioner did give the parties notice that he was considering the possibility of modifying the Demolish Works Order to give the appellants the opportunity to apply for development consent to use the building and a building information certification to regulate its unlawful construction. Although the Commissioner did not, when he first raised the possibility, refer to the building being used as a secondary dwelling, Mr Cai on behalf of the appellants did expressly ask whether the use would have to be for secondary dwelling rather than as storage. The Commissioner said "it's really up to you or your parents to nominate use that you want approval for and the council will then consider that application and either approve it or refuse it." Mr Cai responded that the appellants "will consider getting development consent and applying for a building information certificate as a storage shed." The Council submitted that in these circumstances the parties, and in particular the appellants, were given notice of and the opportunity to address on the possibility of the Commissioner modifying the Demolish Works Order in the way that he did in his judgment and order, and the parties availed themselves of that opportunity by making submissions on that possibility. 3. As I have noted, the appellants did not contest that they had been accorded procedural fairness by the Commissioner in modifying the Demolish Works Order in the way that he did. The legal error claimed by the appellants, if there be one, would seem to be that the modification of the Demolish Works Order had the effect of declaring the building to be a secondary dwelling, which the appellants had to demolish, but they could not do so as it was not in fact a secondary dwelling. 4. I do not consider the Commissioner's modification of the Demolish Works Order to refer to the secondary dwelling does raise an error of law, for three reasons. First, the Commissioner found that the building was a secondary dwelling not because it was in fact being occupied or used as a separate domicile but because it was so constructed or adapted as to be capable of being occupied or used as a separate domicile. As I have found earlier, that was a finding of fact open on the evidence. Even if that finding be incorrect, that would be an error of fact not of law. Having so found that the building was a secondary dwelling, the Commissioner framed the order modifying the Demolish Works Order to give effect to this finding. This explains the references to secondary dwelling in orders 1, 2 and 3 of the Demolish Works Order, as well as in the opening phrase that conditions the operation of the Demolish Works Order. This did have the effect of declaring that the building was a secondary dwelling, but this was consistent with the Commissioner's finding. The Commissioner did not err in law by including references to "secondary dwelling" in the modified order. 5. Secondly, the replacement of the words "granny flat" with the words "secondary dwelling" in orders 1, 2 and 3 of the Demolish Works Order did not make compliance with the orders impossible. Order 1 is clear that the "entire structure" has to be demolished. It mattered not whether that entire structure was labelled a "granny flat" or a "secondary dwelling", or even a storage shed as the appellants had argued. However the entire structure was described, order 1 required that it be demolished. If the entire structure were to be demolished, order 1 would be complied with, irrespective of whether in fact the entire structure was a secondary dwelling or something else. The operation of order 1 is not dependent on the description of the entire structure. 6. The same conclusion applies to orders 2 and 3 of the Demolish Works Order. The operative part of each order is the object of the action, the plumbing and electrical work required to be disconnected by order 2 and the concrete slab (footing) required to be removed by order 3. The stated purpose for which the object was originally undertaken of being "for the secondary dwelling" is not determinative. Again, if the plumbing and electrical works installed in the building were to be disconnected and the concrete slab (footing) poured for the building were to be removed, orders 2 and 3 would be complied with, irrespective of whether or not those plumbing and electrical works were installed for the secondary dwelling or that concrete slab (footing) was poured for the secondary dwelling. The operation of orders 2 and 3 is not dependent on the purpose for which the works referred to in the orders were undertaken. 7. In this respect, the Commissioner did not err in law in framing orders 1, 2 and 3 by including a reference to "secondary dwelling". 8. Thirdly, the Commissioner did not err in law in making demolition conditional on the appellants not obtaining development consent to use the building as a secondary dwelling and a building information certificate in relation to the secondary dwelling. It may be accepted that the only circumstance in which the Demolish Works Order would not require demolition of the building is if development consent to use the secondary dwelling and a building information certificate in relation to the secondary dwelling are obtained. In a practical sense, this may put pressure on the appellant to apply for such a development consent and a building information certificate in relation to a secondary dwelling. That pressure may be unwelcome. 9. The appellants have stated they do not wish to use the building as a secondary dwelling, but rather wish to use it as a storage shed. They assert that the building does not have the features and facilities that would cause it to be a secondary dwelling and they would have to alter the building to provide these features and facilities if they were to apply for development consent to use the building as a secondary dwelling 10. The Council had raised as contentions in its statement of facts and contentions that the building has not been constructed to a standard and in a manner that would accord with the Building Code of Australia, the National Construction Code, the EPA Act and the Environmental Planning and Assessment Regulation 2000 for a building to be used as a dwelling or secondary dwelling. The appellants had sought to contest these contentions by tendering a letter from a civil and structural engineer, Mr Michael Li, dated 12 June 2021 that the building "is structurally sound and the building works have been constructed in accordance with AS2870, AS3600, AS1684.2 and the NCC". The Commissioner did not accept Mr Li's evidence: at [38]. As the Commissioner observed at the hearing, if the appellants were to apply to use the building as a secondary dwelling, the building "would need to comply with the requirements that the council has for secondary dwellings" (T29). 11. The appellants also pointed out on this appeal that the building does not meet the objective in Chapter 5, section 5B.2.5 Materials in the Fairfield City-wide Development Control Plan 2013 to ensure that the building materials used for a secondary dwelling are sympathetic to the principal dwelling. The appellants noted that the materials of the building as constructed are not sympathetic with the materials of the principal dwelling on the site. This may require the building to be reconstructed with sympathetic materials. 12. Hence, the appellants would need, in any application for development consent to use the building as a secondary dwelling, to propose installation of the features and facilities for a secondary dwelling and reconstruction of the building to comply with the building requirements for a secondary dwelling and with materials that are sympathetic with the materials of the principal dwelling. This would involve considerable cost, all in order to use the building for a purpose, as a secondary dwelling, for which the appellants do not wish to use the building. 13. However, merely because the result of the Commissioner's modification of the Demolish Works Order is unwanted and costly for the appellants if complied with does not cause the Commissioner's decision and order to be erroneous in law. The Commissioner heard the appellants' arguments as to why the building is not currently constructed or used as a secondary dwelling, why they do not wish to apply for development consent to use the building as a secondary dwelling in the future, and why they instead wish to apply for development consent to use the building as a storage shed. The Commissioner did not, however, agree with the appellants' arguments. He decided that the only circumstance in which the building should not be demolished is if the appellants obtained a development consent to use the building as a secondary dwelling and a building information certification in relation to the secondary dwelling. That was a factual decision open to the Commissioner on the evidence. Even if it were to be incorrect, that would be an error of fact, not law. 14. The appellants may also misunderstand the operation and effect of the Demolish Works Order, as modified by the Commissioner. Whilst the operation of the Demolish Works Order is made conditional on a development consent and a building information certificate for a secondary dwelling not being obtained, the Demolish Works Order does not preclude the appellants from applying for development consent to use the building as a storage shed and a building information certificate in relation to a storage shed. Such applications may or may not require some alterations to the building to comply with the building or other requirements for storage sheds, as the Commissioner observed at the hearing. If the appellants were to make such applications, the Council may or may not approve such applications. If the Council does approve the applications, it would have the power to revoke the Demolish Works Order, thereby removing the need for the appellants to demolish the building. The development consent and the building information certificate would authorise the ongoing use of the building as a storage shed. The appellants' argument that the Demolish Works Order precludes them from making such applications for a storage shed is therefore incorrect. Conclusion and orders 1. The appellants have not established that the Commissioner erred on a question of law in rejecting the appellants' arguments in the court below or in modifying the Demolish Works Order in the ways that he did. Their appeal should be dismissed. 2. On an appeal under s 56A of the Court Act against a Commissioner's decision, the usual order is that costs follow the event, which is the result of the appeal. In this appeal, the appellants have been unsuccessful and hence should pay the costs of the Council. The quantum of the Council's costs is yet to be determined. The Council will provide the appellants with a bill of costs. The appellants can either agree the amount of costs or request for the costs to be assessed by a costs assessor. On such an assessment the appellants can contest any items of costs they contend should not have been incurred or are excessive. The costs assessor will determine any such contention. 3. The Court orders: 1. The appeal is dismissed. 2. The appellants are to pay the respondent's costs of the appeal as agreed or assessed. ********** 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: 13 May 2022