Cai v Fairfield City Council [2021] NSWLEC 1657

Cai v Fairfield City Council [2021] NSWLEC 1657

The statutory preconditions for the Order were established because the Applicants owned the Land and erected the Building without development consent, which was required whether the Building was characterised as a secondary dwelling or as a storage shed. Council complied with the procedural fairness requirements in Schedule 5 of the EPA Act, considered the Applicants' representations, and was not required to enter the Land before issuing the Order. The Applicants' evidence did not establish structural adequacy and did not justify revocation. However, because the Applicants believed they could not seek approval while the Order remained in place and the Building had existed for about 6...

Jurisdiction
Australia
Judgment Date
28 October 2021
Procedural Posture
Class 1 Appeal Against a Development Control Order Under S 8.18 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing; Appeal Followed an Unsuccessful Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; the development control order issued to each Applicant was varied to modify its wording and extend the time for compliance, subject to the Applicants obtaining development consent and a building information certificate.
Legal Topics
['demolition Order' 'unauthorised Building Works' 'development Consent' 'procedural Fairness' 'building Information Certificate' 'secondary Dwelling' 'exempt Development']
['environmental Planning and Assessment' 'development Control Orders' 'building Regulation'] ['demolition Order' 'unauthorised Building Works' 'development Consent' 'procedural Fairness' 'building Information Certificate' 'secondary Dwelling' 'exempt Development']

Case Brief

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Procedural Posture

Class 1 Appeal Against a Development Control Order Under S 8.18 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing; Appeal Followed an Unsuccessful Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the statutory basis for giving the development control order was established because the Building was erected without development consent' 'Whether Council complied with the procedural fairness requirements for giving the development control order' 'Whether the Building should be characterised as a secondary dwelling, dwelling, storage shed or garden shed' 'Whether the Building was exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008' 'Whether the order should be revoked or modified to allow the Applicants time to seek development consent and a building information certificate' "Whether the Applicants' evidence established that the Building was structurally adequate"]

Ratio Decidendi

The statutory preconditions for the Order were established because the Applicants owned the Land and erected the Building without development consent, which was required whether the Building was characterised as a secondary dwelling or as a storage shed. Council complied with the procedural fairness requirements in Schedule 5 of the EPA Act, considered the Applicants' representations, and was not required to enter the Land before issuing the Order. The Applicants' evidence did not establish structural adequacy and did not justify revocation. However, because the Applicants believed they could not seek approval while the Order remained in place and the Building had existed for about 6...

Court Disposition

Appeal upheld; the development control order issued to each Applicant was varied to modify its wording and extend the time for compliance, subject to the Applicants obtaining development consent and a building information certificate.

Orders

  • ['The Appeal is upheld.' 'The Development Control Order issued to each Applicant on 6 April 2021 by Fairfield City Council in relation to the land described as Lot 9 DP 216835 known as 11 Wadds Avenue Cabramatta is varied so that the words "granny flat" wherever appearing are replaced with the word "secondary...