Ilardo v Liverpool City Council [2019] NSWLEC 1416

Land and Environment Court New South Wales

Medium Neutral Citation: Ilardo v Liverpool City Council [2019] NSWLEC 1416 Hearing dates: 30 August 2019 Date of orders: 11 October 2019 Decision date: 06 September 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) The demolish works order issued by Liverpool City Council on Ms F C Ilardo on 18 July 2018 is, pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, substituted with the Demolish Works Order in Annexure A. (3) The exhibits are returned. Catchwords: ORDERS – Quantity and size of aviary structures – keeping of ducks – enforcement – application of discretion – directions for amended order Legislation Cited: Environmental Planning and Assessment Act 1979 Liverpool Local Environmental Plan 2008 State Environmental Planning Policy Exempt and Complying Development (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: F C Ilardo (Applicant) Liverpool City Council (Respondent) Representation: Counsel: D Mockler (Solicitor) (Applicant) M Knight (Solicitor) (Respondent)

Solicitors: Stewart Cuddy and Mockler (Applicant) Liverpool City Council (Respondent) File Number(s): 2018/252465 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against a Demolish Works Order (the order) issued by Liverpool City Council on Ms F C Ilardo of 6 Ovens Close, Horningsea Park. The order was issued on the 18 July 2018, pursuant to Division 9.3 s.9.34 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The order requires the following; "To do what: To demolish or remove a building/s – structures highlighted and marking in attached site image: - Above ground swimming pool (Marked A) - Shade sails located in the rear of the yard (marked B & C) - Awning over the duck pond which extends to the permanent aviary adjacent (marked D) - All moveable aviaries and cage structures within the garage and backyard. Property to be restored to its previous condition under Building Certificate BC-140/2012, which approved: '12 permanent aviaries (maximum 20 poultry excluding pea fowl and pigeon)' approved using plans by Les Turner Aviaries and Sheds." (Exhibit 1) 1. The reasons for the Order are stated as: "- A building requiring planning approval is erected without approval - The works are not considered Exempt under the State Environmental Planning Policy Exempt and Complying Development (Exempt and Complying Development Codes) 2008 - You are the owner of the property." 1. It is the agreed position of the parties that since the issue of the order in July 2018: the above ground swimming pool has been removed; the shade sails have been brought into compliance with State Environmental Planning Policy Exempt and Complying Development (Exempt and Complying Development Codes) 2008 (SEPP Exempt & Complying); and the awning over the duck pond has been certified by a structural engineer and is now considered satisfactory. The parties accept that the components of the order addressing these matters should be revoked. 2. The principal issue in contest between the parties is the moveable aviaries and cage structures on the property. The order issued by the Council does not direct itself to the number of birds kept on the premises and focuses only on the legality of the moveable aviaries and cage structures on the site. 3. In 2014, a Building Certificate (BC140/2012) was issued by Liverpool City Council that regularised 12 permanent aviaries on the site. These fixed aviaries are not the subject of the order or these proceedings. 4. In appealing the order, Ms Ilardo seeks the Court's discretion to allow her to retain the 16 moveable aviaries and cage structures on the premises.