England & Anor v Fairfield City Council [2015] NSWLEC 1387

Land and Environment Court New South Wales

Medium Neutral Citation: England & Anor v Fairfield City Council [2015] NSWLEC 1387 Hearing dates: 24 September 2015 Date of orders: 24 September 2015 Decision date: 24 September 2015 Jurisdiction: Class 1 Before: Morris Decision: Appeal upheld Catchwords: CONSENT ORDERS: orders to demolish carport, relocation Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Robert James England Jean Ann England (Applicants) Fairfield City Council (Respondent) Representation: Counsel: Mr J Doyle (Applicants)

Solicitors: Mr J Thompson, Ritchie Castellan (Respondent) File Number(s): 10271 of 2015

Judgment 1. Fairfield City Council issued an Order under the provisions of Section 121B of the Environmental Planning and Assessment Act 1979 to the owners of No 277 Polding Street, Fairfield West that required the demolition of a carport that the council says had been erected without consent. The owners of that property and applicants in these proceedings are appealing the provisions of that Order. 2. A conciliation conference was held on site on 27 May 2015 with subsequent discussions held in June 2015 however no agreement was reached and the conciliation was terminated. I had presided over that conference and have visited the site. 3. The applicants were granted leave by the Court on 14 July 2015 to amend the application to provide for the relocation of the carport from within the front building line setback to Smithfield Road to a location behind that building line and to the east of the existing dwelling house. An existing driveway crossing provides vehicular access to the site in the location that would service the proposed relocated carport. 4. The council filed Amended Statement of Facts and Contentions in relation to the amended application and opposed the amendment on the basis that no consent has been granted to provide for the relocation of the carport and that it would have adverse impacts on traffic movement along Smithfield Road, particularly due to its proximity to a major intersection. 5. Since the contentions were filed, the council has further considered the amended proposal and maintains its position that it would result in traffic conflicts in relation to roadworks that are being undertaken at the adjacent intersection to the east of the site. For that reason, Mr Thompson, for the council, submits the existing location of the carport is the "the lesser of two evils" in terms of traffic impact, and because it utilises an existing approved driveway crossing, the council no longer objects to the location of the carport. 6. The parties are now seeking Consent Orders from the Court. 7. The council is satisfied that the traffic, amenity and visual impacts of the carport are acceptable in the circumstances of the case and that variation to the provisions of its Development Control Plan would be appropriate. 8. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are: 1. The appeal is upheld. 2. The Orders issued by Fairfield City Council to the applicants on 23 February 2015 are revoked. ___________________ Sue Morris Commissioner of the Court