Aghlmand v Penrith City Council

Land and Environment Court (NSW)|2024-06-27

Judgment

COMMISSIONER: This is an appeal against a Development Control Order (DCO) issued by Penrith City Council (Council) on 15 August 2023 pursuant to Pt 9 Div 9.3, ss 9.34(1)(a) and 9.35(1)(c), and Sch 5 Pt 1 Order 3 of the Environmental Planning and Assessment Act 1979 (EPA Act) to demolish the structure at the premises known as 38 Muscio Street Colyton NSW 2760 (Premises) by 5pm on 30 August 2024.
Council's reasons for issuing the DCO were: 1. An enclosed pergola (marked in red on Map 1 below) had been constructed without development consent being granted. 2. The construction of the enclosed pergola is not exempt development and therefore required development consent under s 4.2(1)(a) of the EPA Act. 3. The enclosed pergola had been constructed without any critical stage building inspections taking place during the construction, and therefore Council was unable to determine whether compliance with the National Construction Code 2022 (formerly the Building Code of Australia)(NCC) was achieved, and therefore the enclosed pergola may be structurally unsound. 4. The enclosed pergola does not comply with the deemed to satisfy provisions of the NCC, Volume Two, Class 1 and 10 buildings, Part H3 fire safety, and is not appropriately fire separated in accordance with clause 9.2.6. Figure 1: Aerial photograph of the premises forming Map 1 of the DCO: Ex 2, Council's Statement of Facts and Contentions filed 5 October 2023 (SOFAC)
The enclosed pergola falls within the definition of 'building' pursuant to s 1.4(1) of the EPA Act.
The appeal is brought pursuant to s 8.18(1) of the EPA Act.
The proceedings fall within Class 1 of the Court's jurisdiction in accordance with s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
Development within the vicinity of the Premises typically comprises single storey detached residential houses.
The Premises fall within Zone R2 Low Density Residential pursuant to the cl 2.3 and the Land Use Table in Penrith Local Environmental Plan 2010 (PLEP 2010).

Environmental Planning and Assessment Act 1979 8.18 Appeals concerning orders (cf previous s 121ZK) (1) A person who is given a development control order may appeal to the Court against the order. (2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises). (3) The appeal may be made only - (a) within 28 days after the development control order is given to the person, or (b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person. (4) On hearing an appeal, the Court may - (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit.

The Applicant appealed the DCO in accordance with the time provisions in s 8.18(3) of the EPA Act.
The powers of the Court on appeal are set out in s 8.18(4) of the EPA Act.
The hearing commenced with a view of the Premises. The Applicant did not present any expert evidence, and relied upon Ex A: Bundle of Photographs taken by the Applicant, and Ex B: A Stratco Brochure.
The Council relied upon the following affidavits which were read: 1. Ex 4: Sarah Hall, building surveyor and Senior Development Compliance Officer with the Council, filed 24 June 2024. 2. Ex 5: Ross Kerkham, building surveyor, town planner, and a Building Assessment Co-ordinator with the Council, filed 24 June 2024. 3. It is noted that the substance of these affidavits were filed earlier in the proceedings, but did not comply with the Expert Witness Code of Conduct. Both affidavits were subsequently reformatted, re-sworn and filed. No objections were raised by the Applicant as to late service.
During the hearing the parties negotiated a settlement of the issues regarding the DCO. The modified DCO as set out below addresses the concerns of Council, particularly in relation to: 1. The enclosed pergola being reduced in size by partial demolition and rebuilding in accordance with the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt SEPP) Pt 2 Div 1 cl 2.12 and Part H3 Fire safety, Section H3P1 Spread of fire, clause (1)(a) of the NCC. 2. The building separation to comply with the fire regulations in NCC as set out above, and in the modified DCO.
I am satisfied that the proposed modification of the DCO will result in a built form that complies with the Exempt SEPP and the fire regulations in the NCC as the built form is being reduced in size, access to the primary dwelling is being reinstated as an external access, and it is separated from the secondary dwelling.
In accordance with s 8.18(4)(b) I shall modify the DCO as follows: "Premises: Lot 14 DP 26030 known as 38 Muscio Street, Colyton NSW 2760. To do what: 1. To demolish the portion of the structure (enclosed pergola) constructed at the Premises as indicated in red on Map 1 so that the modified structure complies with the State Environmental Planning Policy (Exempt and Complying Developdment Codes) 2008. 2. The total floor area of the deck/pergola of the modified structure is not to exceed a maximum floor area of 13.8m2. 3. The total roof area above the deck/pergola of the modified structure is not to exceed a maximum roof area of 13.8m2. 4. The overall height of the modified structure must be under 3000mm measured from the natural ground level to the top side of the roofing/guttering. 5. The door/wall adjacent to the driveway must be removed. 6. The modified structure must be a minimum of 1800mm from any wall of the secondary dwelling. 7. Any additional landings that are clad in decking will form part of the total maximum floor area and must also be 1800mm away from the secondary dwelling. 8. All downpipes are to be connected to the existing stormwater drainage system. Any roof water is to be disposed of into an existing stormwater drainage system. 9. All waste generated as a result of the demolition works is to be disposed of at any approved waste facility. The Applicant must retain receipts of the disposal of waste and submit the receipts to Council with its submission of certification in accordance with Order 10. 10. The Applicant must carry out the works in accordance with the drawing at Annexure C. 11. The Applicant must submit a structural engineer's certification from an appropriately qualified professional engineer for the modified structure on completion of the works. The structural engineer's certification is to include certification for the footings, framing and roof cladding. 12. Should Terms 1-11 of this Order not be complied with in the Period of Compliance specified in this Order, the terms of the Order of 15 August 2023 are reinstated. Reasons for the Order: Paragraphs 1-5 remain identical to those provided in the DCO. 6. The owners have submitted plans of proposed alterations to deck/pergola to comply with Exempt SEPP requirements. Period for Compliance with this Order The terms of this Order are to be complied with by 5pm on 3 February 2025. Appeals Concerning Orders (deleted)"
The Court orders: 1. The appeal is upheld. 2. The Development Control Order reference DC22/0460 issued by Penrith City Council to the Applicant on 15 August 2023 pursuant to Pt 9 Div 9.3 ss 9.34(1)(a) and 9.35(1)(c) of the Environmental Planning and Assessment Act 1979 in relation to the premises known as 38 Muscio Street Colyton NSW 2760 and being the whole of the land in Lot 142 DP 26030 is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in accordance with Annexures A and B.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2024

The enclosed pergola falls within the definition of 'building' pursuant to s 1.4(1) of the EPA Act.
The appeal is brought pursuant to s 8.18(1) of the EPA Act.
The proceedings fall within Class 1 of the Court's jurisdiction in accordance with s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
Development within the vicinity of the Premises typically comprises single storey detached residential houses.
The Premises fall within Zone R2 Low Density Residential pursuant to the cl 2.3 and the Land Use Table in Penrith Local Environmental Plan 2010 (PLEP 2010).

8.18 Appeals concerning orders (cf previous s 121ZK)

(1) A person who is given a development control order may appeal to the Court against the order.

(2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(a) within 28 days after the development control order is given to the person, or

(b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

The Applicant appealed the DCO in accordance with the time provisions in s 8.18(3) of the EPA Act.
The powers of the Court on appeal are set out in s 8.18(4) of the EPA Act.
The hearing commenced with a view of the Premises. The Applicant did not present any expert evidence, and relied upon Ex A: Bundle of Photographs taken by the Applicant, and Ex B: A Stratco Brochure.
The Council relied upon the following affidavits which were read:

(1) Ex 4: Sarah Hall, building surveyor and Senior Development Compliance Officer with the Council, filed 24 June 2024.

(2) Ex 5: Ross Kerkham, building surveyor, town planner, and a Building Assessment Co-ordinator with the Council, filed 24 June 2024.

(3) It is noted that the substance of these affidavits were filed earlier in the proceedings, but did not comply with the Expert Witness Code of Conduct. Both affidavits were subsequently reformatted, re-sworn and filed. No objections were raised by the Applicant as to late service.

During the hearing the parties negotiated a settlement of the issues regarding the DCO. The modified DCO as set out below addresses the concerns of Council, particularly in relation to:

(1) The enclosed pergola being reduced in size by partial demolition and rebuilding in accordance with the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt SEPP) Pt 2 Div 1 cl 2.12 and Part H3 Fire safety, Section H3P1 Spread of fire, clause (1)(a) of the NCC.

(2) The building separation to comply with the fire regulations in NCC as set out above, and in the modified DCO.

I am satisfied that the proposed modification of the DCO will result in a built form that complies with the Exempt SEPP and the fire regulations in the NCC as the built form is being reduced in size, access to the primary dwelling is being reinstated as an external access, and it is separated from the secondary dwelling.
In accordance with s 8.18(4)(b) I shall modify the DCO as follows:

"Premises: Lot 14 DP 26030 known as 38 Muscio Street, Colyton NSW 2760.

1. To demolish the portion of the structure (enclosed pergola) constructed at the Premises as indicated in red on Map 1 so that the modified structure complies with the State Environmental Planning Policy (Exempt and Complying Developdment Codes) 2008.

2. The total floor area of the deck/pergola of the modified structure is not to exceed a maximum floor area of 13.8m2.

3. The total roof area above the deck/pergola of the modified structure is not to exceed a maximum roof area of 13.8m2.

4. The overall height of the modified structure must be under 3000mm measured from the natural ground level to the top side of the roofing/guttering.

5. The door/wall adjacent to the driveway must be removed.

6. The modified structure must be a minimum of 1800mm from any wall of the secondary dwelling.

7. Any additional landings that are clad in decking will form part of the total maximum floor area and must also be 1800mm away from the secondary dwelling.

8. All downpipes are to be connected to the existing stormwater drainage system. Any roof water is to be disposed of into an existing stormwater drainage system.

9. All waste generated as a result of the demolition works is to be disposed of at any approved waste facility. The Applicant must retain receipts of the disposal of waste and submit the receipts to Council with its submission of certification in accordance with Order 10.

10. The Applicant must carry out the works in accordance with the drawing at Annexure C.

11. The Applicant must submit a structural engineer's certification from an appropriately qualified professional engineer for the modified structure on completion of the works. The structural engineer's certification is to include certification for the footings, framing and roof cladding.

12. Should Terms 1-11 of this Order not be complied with in the Period of Compliance specified in this Order, the terms of the Order of 15 August 2023 are reinstated.

Paragraphs 1-5 remain identical to those provided in the DCO.

6. The owners have submitted plans of proposed alterations to deck/pergola to comply with Exempt SEPP requirements.

The terms of this Order are to be complied with by 5pm on 3 February 2025.

(1) The appeal is upheld.

(2) The Development Control Order reference DC22/0460 issued by Penrith City Council to the Applicant on 15 August 2023 pursuant to Pt 9 Div 9.3 ss 9.34(1)(a) and 9.35(1)(c) of the Environmental Planning and Assessment Act 1979 in relation to the premises known as 38 Muscio Street Colyton NSW 2760 and being the whole of the land in Lot 142 DP 26030 is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 in accordance with Annexures A and B.

Planning and Assessment Act 1979

Environment Court Act 1979

At a glance

Court

Decision date

Source

Judgment (38 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)