Duke v Inner West Council

Representation: Counsel:
S Mitchell (Solicitor) (Applicant)
T Poisel (Respondent)
Solicitors:
Mitchell Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s): 2024/400937

Publication restriction: Nil

Judgment

1. COMMISSIONER: Pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the Applicants appeal against Development Control Order Ref EPA/2024/0121 dated 2 October 2024 (DCO) issued by Inner West Council (Council) under the repair order in Sch 5, Pt 1, Item 1 of the EPA Act in relation to Lot 3 in Deposited Plan 314519, known as 1 Henson Street, Summer Hill, NSW 2130 (Site and Premises).

2. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is provided in s 8.18(4)(b) of the EPA Act.

4. The DCO required the Applicants to:

5. Repair the damaged front and side boundary wall ‘like for like’ that faces Henson Street and Short Street Summer Hill, and

6. Carry out repair works in accordance with the following conditions:

(a) Reuse the original bricks and if any are broken or damaged, replace with ‘like for like’ material; (b) Not to include any new material or designs.

3. On completion of the above work, supply to Council a Structural Engineer’s report from a registered practising NER Structural Engineer to certify on the works and structural integrity of the wall.

Legislation

EPA Act*:* Schedule 5 Development Control Orders

Part 1 General Orders

| | Column 1 To do what? | Column 2 When? | Column 3 By whom? | | 5 | Repair Order To repair or make structural alterations to a building | The building is or is likely to become a danger to the public or is so dilapidated that it is prejudicial to the occupants, persons or property in the neighbourhood. | Owner of building |

5. Pursuant to cl 2.3(1) of the Inner West Local Environmental Plan 2022 (IWLEP 2022), and the Land Use Table, the Site is zone R2 Low Density Residential (R2 Zone). The objectives of the R2 Zone are:

6. To provide for the housing needs of the community within a low density residential environment.

7. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

8. To provide residential development that maintains the character of built and natural features in the surrounding area.

9. The Site is listed as a heritage item in Sch 5 of the IWLEP 2022 (Item 1580). The Statement of Significance for the Site states:

“This house supplanted a substantial earlier residence at this corner location reflecting development pressures after World War 1. It is an interesting version of the California Bungalow idiom with some unusual architectural detailing. The front garden trees are fine specimen which also contribute to the streetscape.”

7. The Respondent’s Statement of Facts and Contentions filed on 8 May 2025 states:

“There are three mature Phoenix canariensis (Canary Island date palms) in the front garden.”

8. The Site is a corner property and has a primary frontage to Henson Street, Summer Hill, and a secondary boundary to Short Street, Summer Hill.

Figure 3 from Council’s Statement of Facts and Contentions filed 8 May 2025 – Front Boundary Walls at the Premises facing onto Henson Street

History

9. Following a complaint received by Council in early September 2024 regarding the safety of the front fence of the Premises, on 6 September 2024 Council carried out an inspection of the Premises. Council’s Development Compliance Officer raised issues of structural integrity of the boundary walls’ repair, and matters of public safety with pedestrians using the public footpath.

10. On 11 September 2024 Council issued an Emergency Order to make safe the front and side boundary walls of the Premises. The Emergency Order also directed the Applicants to remove the bricks from the front and side boundary walls to be retained and reused.

11. The Applicants complied with the Emergency Order including providing a Structural Engineer’s Report certifying that the works and structural integrity of the front and side boundary walls were adequate for their purpose for a period of 12 months from 21 September 2024.

12. On 11 September 2024 Council issued a Notice of Intent to Serve a Development Control Order pursuant to s 9.34(1)(a) of the EPA Act (Notice).

13. Pursuant to s 9.35(1)(b) of the EPA Act, Council is the relevant enforcement authority, and has the capacity to enter into an agreement made pursuant to s 34(3) of the LEC Act.

14. On 25 September 2024 Council received a representation from the Applicants in response to the Notice pursuant to Sch 5, Pt 7, cl 13 of the EPA Act.

15. Council considered the representations in accordance with Sch 5, Pt 7, cl 14 of the EPA Act.

16. On 2 October 2024 Council issued the DCO in accordance with Sch 5, Pt 7, cl 15 of the EPA Act.

17. On 29 October 2024, the Applicants filed the Class 1 appeal challenging the DCO in compliance with the time provisions of s 8.18(3)(a) of the EPA Act.

18. The DCO has been issued in the correct circumstances for the reasons set out below.

19. The parties agree that the wall is, or is likely to become, a danger to the public, or is so dilapidated that it is prejudicial to the occupants, persons or property in the neighbourhood. Paragraphs (27)-(35) of the Structural Engineering Expert Report by Neil Walsh filed on 21 July 2025 support the parties’ opinion as to the state of the wall. The risk identified by Mr Walsh, and the parties is presently ameliorated by the erection of barricades cordoning off the relevant area from the public.

20. The wall that is the subject of the DCO is considered a ‘building’ for the purposes of the EPA Act pursuant to s 1.4 which provides the following definition:

building includes part of a building, and also include any structure or part of a structure (including any temporary structure or part of a temporary structure)…

21. The DCO has been issued to the correct persons, being the Applicants as the owners of the property which includes the wall.

22. The parties accept the opinion and advice of the Council’s experts as follows:

23. Ms L Trueman, heritage expert, in her Expert Report filed 21 July 2025.

24. Ms C Mackenzie, arboriculture expert, in her Expert Report filed 21 July 2025.

25. Mr N Walsh, expert structural engineer, in his Expert Report filed 21 July 2025.

26. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 18 August 2025. I presided over the conciliation conference.

27. At the conciliation conference which began onsite, each of the experts confirmed to me that they were satisfied with the terms of the proposed modified DCO attached to the Amended Agreement Between Parties pursuant to s 34(3) of the LEC Act filed 18 August 2025, these terms were appropriate to address the issues raised in these proceedings.

28. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to uphold the appeal and modify the DCO in accordance with the agreement between the parties. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings which are set out in [1] – [23] above.

29. In accordance with the jurisdictional prerequisites set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

Notation

27. The Court notes that the parties have agreed that each party will pay their own costs of these proceedings.

Orders

28. The Court orders:

29. The appeal is upheld.

30. Development Control Order Ref EPA/2024/0121 dated 2 October 2024 issued by Inner West Council in relation to Lot 3 in Deposited Plan 314519 for the property known as 1 Henson Street Summer Hill NSW 2130 is modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW) in accordance with Annexure A.

M Peatman

Acting Commissioner of the Court

**********

Annexure A.159 KB.pdf