Sahyoun Investments Pty Ltd v Fairfield City Council [2022] NSWLEC 1400

Land and Environment Court New South Wales

Medium Neutral Citation: Sahyoun Investments Pty Ltd v Fairfield City Council [2022] NSWLEC 1400 Hearing dates: Conciliation conference on 26 July 2022 Date of orders: 26 July 2022 Decision date: 26 July 2022 Jurisdiction: Class 1 Before: Gray C Decision: See Orders at [15]-[20] Catchwords: APPEAL – development control orders – demolish works carried out partly on public land – cease use orders for outbuildings and principal dwellings – conciliation conference – agreement reached to modify orders – statutory requirements of the orders met – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 s 8.18, 9.34, Sch 5 Land and Environment Court Act 1979 s 34 Category: Principal judgment Parties: Sahyoun Investments Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: G Hayek (Solicitor) (Applicant) D Baird (Solicitor) (Respondent)

Solicitors: Harrington Lawyers Pty Limited (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/178925, 2021/230035, 2021/230036, 2021/230037, 2021/230038, 2021/ 230039 Publication restriction: No

Judgment 1. COMMISSIONER: Sahyoun Investments Pty Ltd (Sahyoun) owns two lots of land, known as 111 and 111A Water Street, Cabramatta West, on each of which a principal dwelling and an outbuilding have been constructed. The outbuilding on each of those properties is also built on adjoining land at the rear, which is identified as an unpaved historical rear laneway and which is not owned by Sahyoun. Fairfield City Council issued three development control orders with respect to each property, resulting in a total of six development control orders. The orders were issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Part 1 of Sch 5 to the EPA Act. Sahyoun appeals each of those orders pursuant to s 8.18 of the EPA Act. 2. On 29 September 2020 a Complying Development Certificate CDC 2020/0540 was issued which authorised the demolition of the existing structures and the construction of a 2-storey detached dwelling and a detached studio on each of Lots 270 and 271 in Section 5 of deposited plan 1553, known as 111 and 111A Water Street, Cabramatta West. It is agreed that CDC 2020/0540 only authorised building work to be carried out on those two lots and did not authorise any building work to be carried out on the historical rear laneway adjoining the rear boundary of each lot. Additionally, conditions 9 and 26 of the CDC 2020/0540 precludes the use or occupation of the altered section of the building until an occupation certificate has been issued. No occupation certificate has been issued. 3. The subject matter of each appeal is as follows: * A development control order to demolish the outbuilding at 111 Water Street (proceedings 2021/230037). * A development control order to stop use of the outbuilding at 111 Water Street (proceedings 2021/230038). * A development control order to stop use of the dwelling house at 111 Water Street (proceedings 2021/230039). * A development control order to demolish the outbuilding at 111A Water Street (proceedings 2021/178925). * A development control order to stop use of the outbuilding at 111A Water Street (proceedings 2021/230035). * A development control order to stop use of the dwelling house at 111A Water Street (proceedings 2021/230036). I note also that two related appeal proceedings, which were appeals against the refusal to issue a building information certificate, have been discontinued and are not presently before the Court (proceedings 2021/311730 and 2021/311748). 1. The orders to demolish the two outbuildings are Demolish Works Orders issued in accordance with Item 3 of Part 1 of Sch 5 to the EPA Act. Item 3 allows an order to be issued to either the owner of the building, or, if the building is situated wholly or partly in a public place, the person who erected the building, if the building was erected in contravention of the EPA Act. The outbuildings are each constructed partly on land that is not owned by the applicant, and contrary to the plans approved by CDC 2020/0540. They were therefore constructed otherwise than in accordance with the complying development certificate, and in contravention of the EPA Act. 2. The orders to stop use of the dwellings and the outbuildings are Stop Use Orders issued in accordance with Item 1 of Part 1 of Sch 5 to the EPA Act. Item 1 allows a stop use order to be issued to the owner of a building if the premises are being used in contravention of a planning approval. The stop use orders are issued on the basis that the applicant is the owner of the buildings, and the buildings are being used in contravention of a planning approval. A planning approval is defined in the EPA Act to include a complying development certificate. 3. 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 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.