Khan v Commissioner for Fair Trading [2023] NSWCATOD 130

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khan v Commissioner for Fair Trading [2023] NSWCATOD 130 Hearing dates: 9 May 2023 Date of orders: 28 August 2023 Decision date: 28 August 2023 Jurisdiction: Occupational Division Before: C Mulvey, Senior Member Decision: The decision of the respondent made on 25 November 2022, is affirmed. Catchwords: OCCUPATIONAL – owner builder permit - s32(1A) Home Building Act - no special circumstances established – no financial hardship established - dual occupancy Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 Standard Instrument (Local Environmental Plans) Order 2006 Cases Cited: Beadle v Director General of Social Security [1984] AATA 176 Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57 McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 Texts Cited: Davie, T: The Annotated Home Building Act 1989 NSW; 2001 Category: Principal judgment Parties: Usman Khan – Applicant Commissioner for Fair Trading - Respondent Representation: Mr U Khan - Applicant Mr M Nicoletti - Respondent File Number(s): 2022/00387857 Publication restriction: None

REASONS FOR DECISION

Background 1. On 4 November 2022, Mr Usman Khan (the "Applicant"), lodged with the Commissioner for Fair Trading (the "Respondent") an application for an owner-builder permit ("OBP") for construction of a dual occupancy and at a property in Dural. On 21 December 2021, the Hills Shire Council granted to the Applicant a Development Consent for that construction. 2. On 7 November 2022, the Respondent issued a Notice of Determination stating that an OBP must not be issued unless the Applicant meets the 'special circumstances' requirement to demonstrate a compelling reason that justifies the issue of the OBP. The Applicant failed to do so and the Respondent refused to issue the Applicant an OBP in accordance with s32(1A) of the HBA. On 8 November 2022, the Applicant requested the Respondent to internally review its decision. The result of the internal review, which was made on 25 November 2022, affirmed the Respondent's initial decision to refuse the issue of an OBP. 3. On 22 December 2022, the Applicant filed an application in this Tribunal, seeking administrative review of the Respondent's internal review decision made on 25 November 2022 ("the Reviewable Decision"). The Applicant cites the grounds for his application as being: 1. We are living on a five acre block where the Council allows to construct two dwellings. At the time of our purchase eight years ago there was a 40 years [sic] old house where we have been living. Now the Council have approved plans for a second single dwelling. 2. I want to build my home as an owner Builder, but my application has been declined because it is titled as dual occupancy due to an old house already standing there. You are requested to approve owner builder permit in view of this particular situation to build my new home.