Land and Environment Court New South Wales Medium Neutral Citation: Sahyoun Investments Pty Ltd v Fairfield City Council [2022] NSWLEC 1361 Hearing dates: 28-29 June 2022 Date of orders: 8 July 2022 Decision date: 08 July 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: See [35] below. Catchwords: DEVELOPMENT CONTROL ORDERS, BUILDING INFORMATION CERTIFICATE APPLICATIONS –orders by consent to modify the date for compliance with nine development control orders – orders by consent dismissing appeals against the refusal of three building information certificate applications Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 8.25, ss 1, 2, 5 of Sch 5, Pt 4, Pt 1 Div 6.7, Div 9.3 Land and Environment Court Act 1979, s 34 Local Government Act 1993 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: Sahyoun Investments Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: T Poisel (Applicant) R O'Gorman-Hughes (Respondent) Solicitors: Harrington Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/121166 2021/355578, 2021/355581, 2021/355576, 2021/355577, 2021/355579, 2021/355580, 2021/355582, 2021/355583, 2021/302656, 2021/356720 2021/356721 Publication restriction: No Judgment 1. COMMISSIONER: These are twelve appeals: nine appeals made pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) concerning development control orders (DCOs) issued by Fairfield City Council (the Council); and three appeals made pursuant to s 8.25(1) of the EPA Act against the Council's refusal of Building Information Certificate applications (BIC applications). The appeals relate to three principal dwellings and three secondary dwellings constructed and now occupied at 93 Boyd Street, Cabramatta West (the site) on four lots, Lot 220 (now 93 Boyd Street), Lot 221 (now 93B Boyd Street), Lot 222 (now 93D Boyd Street) in DP 1553, and Lot 1 in DP 721604. 2. On 23 November 2021, the Court made orders separating each DCO appeal and BIC application appeal into twelve proceedings. 3. The appeals were subject to conciliation on 3 March 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated on 24 March 2022, pursuant to s 34(4) of the LEC Act. 4. On 4 April 2022, the Court directed that the appeals be heard together. Orders by consent of the parties 1. At the commencement of the hearing, the parties submitted their agreement to orders in relation to the Stop Use Orders and Demolish Works Orders issued for the secondary dwellings. The parties agreed that the DCOs can be modified to change the date for compliance to 90 days from the date of the Court's orders, to give the tenants occupying those buildings sufficient time to find alternative accommodation in the locality. 2. Towards the end of the second day of the hearing, following the experts' oral evidence, the parties submitted their agreement to orders in relation to the Stop Use Orders issued for the principal dwellings and the BIC applications for the principal dwellings. The parties agreed that the DCOs can be amended to change the date for compliance to 90 days from the date of the Court's orders, to give the tenants occupying those buildings sufficient time to find alternative accommodation in the locality. The parties agreed to the Court making orders to dismiss the appeals of the BIC applications for the principal dwellings. The DCO appeals 1. The parties agreed to final orders by consent in relation to the three DCOs for the three principal dwellings, as follows: * DCO to stop use at 93 Boyd Street (proceeding no. 2021/121166) (Ex 1 ff 90 – 95), * DCO to stop use at 93B Boyd Street (proceeding no. 2021/355578) (Ex 1, ff 108-113), * DCO to stop use at 93D Boyd Street (proceeding no. 2021/355581) (Ex 1, ff 126-131). 1. The parties agreed to final orders by consent in relation to the six DCOs for the three secondary dwellings, as follows: * DCO to stop use of studio outbuilding at 93 Boyd Street (proceeding no. 2021/355576) (Ex 1, ff 102-107), * DCO for demolition of secondary dwelling 93 Boyd Street (proceeding no. 2021/355577) (Ex 1, ff 96-101), * DCO to stop use of secondary dwelling at 93B Boyd Street (proceeding no. 2021/355579) (Ex 1, ff 120-125), * DCO for demolition of secondary dwelling 93B Boyd Street (proceeding no. 2021/355580) (Ex 1, ff 114-119), * DCO to stop use of secondary dwelling at 93D Boyd Street (proceeding no. 2021/355582) (Ex 1, ff 138-143), * DCO for demolition of secondary dwelling at 93D Boyd Street (proceeding no. 2021/355583) (Ex 1, ff 132-137). The BIC appeals 1. The parties agreed to final orders to dismiss the BIC applications, which are: * BIC application for the principal dwelling at 93 Boyd Street (proceeding no. 2021/302656), * BIC application for the principal dwelling at 93B Boyd Street (proceeding no. 2021/356720), * BIC application for the principal dwelling at 93D Boyd Street (proceeding no. 2021/356721). The site 1. The site consists of four lots, Lot 220 (now 93 Boyd Street), Lot 221 (now 93B Boyd Street), Lot 222 (now 93D Boyd Street) in DP 1553, and Lot 1 in DP 721604 (Lot 1). 2. The three secondary dwellings are constructed at the rear of each of the lots, Lot 220, Lot 221 and Lot 222, and each secondary dwelling is partly located on Lot 1, which is a historic rear laneway (see Figures 1 and 2 below). Figure 1 The four lots Figure 2 Three principal dwellings and three secondary dwellings under construction Background 1. The applicant purchased 93 Boyd Street, Cabramatta West, in February 2020. 2. Each party contends that it is the owner of Lot 1. 3. A complying development certificate (CDC) was issued on 6 May 2020 for the construction of three two-storey dwellings with detached studios on the three lots, Lots 220, 221 and 222. The approved plans show a four-bedroom, two-storey dwelling on each lot and a single storey studio of 20m2 at the rear of each lot. 4. The buildings were constructed during 2020 and the parties agreed that they were not built in accordance with the CDC. 5. The secondary dwellings are not complying development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 6. No occupation certificate has been issued for any of the buildings. The buildings are being occupied in breach of the conditions of the CDC which require an occupation certificate to be issued before occupation. Legislative framework 1. The DCOs were made by the Council pursuant to Div 9.3 and Sch 5, Pt 1 to the EPA Act and were issued on 1 April 2021. The applicant appealed the DCOs to the Court pursuant to s 8.18(1) of the EPA Act. The Court's powers on hearing the appeals are in the following terms, under s 8.18(4) of the EPA Act: (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. 1. Section 2 of Sch 5, Pt 4 is in the following terms: 2 Orders that make or are likely to make residents homeless (1) If a development control order will or is likely to have the effect of making a resident homeless, the relevant enforcement authority proposing to give the order must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality. (2) If the resident is not able to arrange satisfactory alternative accommodation in the locality, the relevant enforcement authority must provide the resident with— (a) information as to the availability of satisfactory alternative accommodation in the locality, and (b) any other assistance that the relevant enforcement authority considers appropriate. 1. The three BIC applications for a principal dwelling on each lot were made by the applicant pursuant to Div 6.7 of the EPA Act and were lodged with the Council on 20 July 2021. The BIC applications were refused by the Council on 15 September 2021. The applicant appealed the refusal of the BIC applications to the Court pursuant to s 8.25(1)(a) of the EPA Act. The Court's powers on hearing the appeals are in the following terms, under s 8.25(3) of the EPA Act: (3) On hearing the appeal, the Court may do any one or more of the following— (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. Expert evidence 1. The applicant relied on the expert evidence of Deniz Sertlioglu (building compliance) and Cheng Zhao (structural engineering). 2. The Council relied on the expert evidence of Grant Milienou (building compliance) and Dr Ali Amin (structural engineering). Consideration Development Control Orders that make or are likely to make residents homeless 1. The Stop Use Orders for the principal and secondary dwellings will require the tenants to vacate those buildings. 2. The Council sent a letter to each resident dated 1 April 2021 informing them of the issuing of Stop Use Order issued to the owner of each of the buildings (Ex 5). 3. The Council submitted that the purpose of giving the applicant 90 days from the date of the Court's orders to comply with the DCOs is to allow the tenants sufficient time to arrange satisfactory alternative accommodation in the locality. 4. On 6 July 2022, the Council provided the Court with a list of similar accommodation currently available in the locality to demonstrate that there is similar accommodation currently available in the locality, pursuant to s 2(1) of Sch 5, Pt 4 of the EPA Act. 5. I have considered whether the residents of the dwellings are able to arrange satisfactory alternative accommodation in the locality and I am satisfied, based on the evidence before me, that there is currently similar accommodation available in the locality and that the 90-day period provided will be sufficient time to allow the residents to make suitable arrangements. Disputed ownership of Lot 1 1. The parties' dispute regarding the ownership of Lot 1 cannot be resolved in this forum and so I must merely be satisfied, if Lot 1 is indeed owned by the Council and not the applicant, that there is power to modify the DCOs for the secondary dwellings partly located on Lot 1. 2. Under Sch 5, s 1 to the EPA Act, a "Stop Use Order" can be issued to the owner of premises or building or a person using the premises or building. 3. Under Sch 5, s 5 to the EPA Act, a "Demolish Works Order" can be issued to the owner of a building, or, if the building is situated wholly or partly in a public place, the person who erected the building. 4. I accept the Council's submission that a DCO can be issued to a building owner even when part of the building the subject of the DCO is located on public land. Public land is defined by the dictionary of the Local Government Act 1993 as follows: public land means any land (including a public reserve) vested in or under the control of the council, but does not include— (a) a public road, or (b) land to which the Crown Land Management Act 2016 applies, or (c) a common, or (d) a regional park under the National Parks and Wildlife Act 1974. 1. As a DCO to Stop Use can be issued to a person "using the premises or building", a DCO to Stop Use can be issued to someone who is not the owner of the land or the building. I accept the Council's submission that implied in the terms of the schedule, the DCOs to Stop Use can be issued to the applicant as the owner of and person who erected the secondary dwellings, even if the secondary dwellings are located partly on land vested in the Council. 2. If the Council is the owner of Lot 1, a DCO to Demolish Works can be issued to the owner of a building, or to the person who erected the building when part of that building is situated in a public place. As the applicant is the person who erected the building, the DCOs to Demolish Works can be issued to the applicant even if parts of those secondary dwellings are erected on land vested in the Council. Conclusion 1. I have considered the matters raised in the Court's Class 1 Development Appeals Practice Note under paragraph 99 regarding an application for final orders by consent of parties, and I am satisfied, based on the evidence before me, that it is lawful and appropriate to make the orders requested by the parties. Orders 1. The orders of the Court are: 1. The appeals in relation to Development Control Orders for 93, 93B and 93D Boyd Street, Cabramatta West, and Lot 1 in DP 721604 (file numbers 2021/121166, 2021/355578, 2021/355581, 2021/355576, 2021/355577, 2021/355579, 2021/355580, 2021/355582 and 2021/355583) are upheld. 2. Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979, Development Control Orders (file numbers 2021/355576, 2021/355579 and 2021/355582), being Stop Use Orders relating to the three secondary dwellings at 93, 93B and 93D Boyd Street, Cabramatta West, and Lot 1 in DP721604 are modified as follows: 1. The date for compliance with the development control orders is 90 days from the date of these orders. 1. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Development Control Orders (file numbers 2021/355577, 2021/355580 and 2021/355583), being Demolish Works Orders relating to the three secondary dwellings at 93, 93B and 93D Boyd Street, Cabramatta West, and Lot 1 in DP721604, are modified as follow: 1. The date for compliance with the development control orders is 90 days from the date of these orders. 1. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Development Control Orders (file numbers 2021/121166, (2021/355578, 2021/355581), being Stop Use Orders relating to the three principal dwellings at 93, 93B and 93D Boyd Street, Cabramatta West, are modified as follow: 1. The date for compliance with the development control orders is 90 days from the date of these orders. 1. The appeals against the refusal of the Building Information Certificates for the principal dwellings at 93, 93B and 93D Boyd Street, Cabramatta West (file numbers 2021/302656, 2021/356720 and 2021/356721) are dismissed. ____________ Susan O'Neill 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: 08 July 2022