Leung v City of Parramatta Council [2018] NSWLEC 1506

Land and Environment Court New South Wales

Medium Neutral Citation: Leung v City of Parramatta Council [2018] NSWLEC 1506 Hearing dates: 13 September 2018 Date of orders: 28 September 2018 Decision date: 28 September 2018 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is dismissed. (2) Exhibits 1, 2 and C are returned. Catchwords: APPEAL – council order for demolition of carport – whether order validly issued – powers of the Court on an appeal against an order – whether the Court should allow a modified carport to remain temporarily Legislation Cited: Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 Texts Cited: Hornsby Development Control Plan 2013 Category: Principal judgment Parties: Kam Hung Leung (First Applicant) Louise Siu Lai Sin (Second Applicant) City of Parramatta Council (Respondent) Representation: Counsel: M Arch, Solicitor (Applicants) J Walker (Respondent)

Solicitors: Concordia Pacific (Applicants) City of Parramatta Council (Respondent) File Number(s): 18/96828

Judgment 1. COMMISSIONER: At some point prior to 19 December 2016, Mrs Louise Siu Lai Sin and Mr Kam Hung Leung erected a carport within the front setback of their two storey property at 11 Holden Avenue, Epping. On 1 March 2018, the City of Parramatta Council ("the Council") issued an order pursuant to the former s 121B of the Environmental Planning and Assessment Act 1979 ("EPA Act"), requiring the demolition of the carport. Mrs Sin and Mr Leung ("the applicants") appeal against the order pursuant to the former s 121ZK, now s 8.18 of the EPA Act. 2. The applicants agree that development consent was required for the construction of the carport, and that consent was not obtained. They are willing to accede to the order to remove the carport, but seek to have the timetable for compliance extended to enable the carport to remain in place for a period while their elderly father continues to visit and/or reside at the property. They are also prepared to provide landscaping within the front setback of the property to screen the carport structure from view, and reduce the size of the carport by removing some of the metal support structures. The applicants also contend that the order is liable to be set aside on the basis that it was not validly issued. 3. For the reasons set out below, I have determined that the order was validly issued, and that it is not appropriate in the circumstances for the Court to exercise its discretion in favour of allowing the structure to stay for a period of time in a modified form. As such, the appeal is dismissed.