Tan v Canterbury-Bankstown Council [2019] NSWLEC 1451

Land and Environment Court New South Wales

Medium Neutral Citation: Tan v Canterbury-Bankstown Council [2019] NSWLEC 1451 Hearing dates: 20 September 2019 Date of orders: 20 September 2019 Decision date: 20 September 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) The development control order issued by the Respondent to the Applicant dated 24 April 2019 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order at Annexure A. (3) Each party shall pay its own costs of these proceedings. Catchwords: APPEAL – development control order – demolition of carport and shed – parties agree to modified development control order Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Texts Cited: Building Code of Australia Category: Principal judgment Parties: Li Ying Tan (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: Y Cingiloglu (Solicitor) (Applicant) J Strati (Solicitor) (Respondent)

Solicitors: The Australian Legal Practice (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2019/178350 Publication restriction: No

Judgment 1. COMMISSIONER: On 24 April 2019, Canterbury-Bankstown Council ("the Council") issued a development control order that requires the demolition of a carport and shed constructed at 10 Moncur Avenue, Belmore. Mr Tan appeals against the order, pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). 2. The order was issued by the Council pursuant to Division 9.3 of the EPA Act and Part 1 of Schedule 5 to the Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Part 1 of Schedule 5. Item 3 of Part 1 of Schedule 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building "requiring a planning approval is erected without approval". It is not disputed by Mr Tan that the carport and shed require planning approval, and that they were erected without approval. 3. The order is in the following terms: "1. Demolish and remove the unauthorised awning/carport structure, measuring approximately 13 x 3 metres, attached to the southern wall of the existing secondary dwelling located in the rear yard of the premises, and 2. Demolish and remove the unauthorised awning/carport structure, measuring approximately 4 x 3.5 metres, attached to the eastern wall of the existing secondary dwelling located in the rear yard of the premises." 1. The parties have now reached agreement on the terms of a modified development control order with respect to the carport and the shed. The modified development control order requires that Mr Tan demolish the shed and modify the carport so that it is reduced in size and its setback from the boundary is increased. For the reasons that follow, I consider it appropriate to allow the appeal and make an order for the development control order to be modified in the manner agreed to by the parties.