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. The conciliation conference and the agreed outcome in each appeal 1. In each appeal, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 July 2022. I presided over the conciliation conference. 2. At the conciliation conference, in each appeal proceedings, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is that, in each appeal, the order is modified to allow additional time for compliance. The agreement reached in each matter reflects the terms of a signed agreement filed on 21 July 2022 in each matter. 3. As the presiding Commissioner, I am satisfied that the decision to make orders, in each appeal, to modify the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order. 4. In addition, the statutory requirements of each of the orders are met. Under Sch 5 of the EPA Act, Item 1 allows a Stop Use Order to be issued to "the owner of premises or building or a person using the premises or building." Sahyoun is the owner of each of the dwellings and the outbuildings. I am satisfied that both the dwellings and the outbuildings are being occupied in contravention of a planning approval. The statutory requirements of each of the four stop use orders are therefore met. 5. Similarly, Item 3 of Sch 5 to the EPA Act allows a Demolish Works Order to 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. A public place is defined to include a "public road", and therefore includes the rear laneway on which the outbuildings are partly constructed. Sahyoun is the person who erected the building, and therefore the order can be issued to it. I am satisfied that both the outbuildings were erected contrary to the CDC 2020/0540, and therefore in contravention of the EPA Act. The statutory requirements of each of the two demolish works orders are therefore met. 6. The stop use orders (and the demolish works orders) will require the tenants to vacate the dwelling houses and the outbuildings. Clause 2 of Part 4 of Sch 5 of the EPA Act concerns the issuing of orders that are likely to make residents homeless. It provides: 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. Based on the statement of Mr Mark Davies dated 8 July 2022, I am satisfied that there is alternative accommodation available for rent in the locality and that the tenants of the outbuildings and dwelling houses will be made aware of that alternative accommodation. Further, the period of 90 days for compliance with the orders will allow sufficient time to the tenants to find alternative accommodation. 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). In each matter, I therefore make orders in accordance with the agreement of the parties. Orders 1. In proceedings 2021/178925, the Court orders that: 1. The Appeal in relation to a Development Control Order in the terms of a Demolish Works Order for the Outbuilding on the land at Lot 271 Section 5 DP 1553 known as 111A Water Street, Cabramatta West ("the Demolish Works Order") is upheld. 2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Demolish Works Order is modified as follows: 1. The date for compliance with the Demolish Works Order is ninety (90) days from today's date. 1. In proceedings 2021/230035, the Court orders that: 1. The Appeal in relation to a Development Control Order in the terms of a Stop Use Order for the Outbuilding on the land at Lot 271 Section 5 DP 1553 known as 111A Water Street, Cabramatta West ("the Stop Use Order") is upheld. 2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Stop Use Order is modified as follows: 1. The date for compliance with the Stop Use Order is ninety (90) days from today's date. 1. In proceedings 2021/230036, the Court orders that: 1. The Appeal in relation to a Development Control Order in the terms of a Stop Use Order for the Principal Dwelling on the land at Lot 271 Section 5 DP 1553 known as 111A Water Street, Cabramatta West ("the Stop Use Order") is upheld. 2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Stop Use Order is modified as follows: 1. The date for compliance with the Stop Use Order is ninety (90) days from today's date. 1. In proceedings 2021/230037, the Court orders that: 1. The Appeal in relation to a Development Control Order in the terms of a Demolish Works Order for the Outbuilding on the land at Lot 270 Section 5 DP 1553 known as 111 Water Street, Cabramatta West ("the Demolish Works Order") is upheld. 2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Demolish Works Order is modified as follows: 1. The date for compliance with the Demolish Works Order is ninety (90) days from today's date. 1. In proceedings 2021/230038, the Court orders that: 1. The Appeal in relation to a Development Control Order in the terms of a Stop Use Order for the Outbuilding on the land at Lot 270 Section 5 DP 1553 known as 111 Water Street, Cabramatta West ("the Stop Use Order") is upheld. 2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Stop Use Order is modified as follows: 1. The date for compliance with the Stop Use Order is ninety (90) days from today's date. 1. In proceedings 2021/230039, the Court orders that: 1. The Appeal in relation to a Development Control Order in the terms of a Stop Use Order for the Principal Dwelling on the land at Lot 270 Section 5 DP 1553 known as 111 Water Street, Cabramatta West ("the Stop Use Order") is upheld. 2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Stop Use Order is modified as follows: 1. The date for compliance with the Stop Use Order is ninety (90) days from today's date. J Gray 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: 26 July 2022