Kalinic v Inner West Council

Representation: Counsel:
A Kalinic (Self-represented) (Applicant)
M To (Solicitor) (Respondent)
Solicitors:
Inner West Council (Respondent)

File Number(s): 2025/62961

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the Development Control Order EPA/2024/0163 (DCO) issued 21 January 2025, but incorrectly dated 21 January 2024, to demolish works (Order 3) under Part 1 Schedule 5 of s 9.34 of the EPA Act in respect of unauthorised works carried out at 23 Macarthur Parade Dulwich Hill legally described as Lot C in DP 403624 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 2 and 23 July, and 4 August 2025. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and modifying the DCO.

4. The contentions raised in Council’s Statement of Facts and Contentions, as filed on 14 March 2025, are resolved by the agreement filed with the Court pursuant to s 34 of the LEC Act. The parties have agreed to modify the order as follows:

5. Delete the words “Mrs Adriana Moshacke and Angie Kalinic” from the addressees of the Order and insert “Ms Angie Kalinic”.

6. Delete paragraph 1 of the Order and insert the following:

“1. Undertake the following works with respect to the outbuilding/studio, located at the rear of the above subject premises:

a. All doors facing neighbouring properties are to be sealed or decommissioned, leaving only the door facing the house on the subject premises in operation;

b. Any windows are to be frosted;

c. Any internal smoke alarms are to be hard wired;

d. A licensed plumber’s report certifying that the subject premises’ stormwater disposal system is compliant and fit for purpose is to be submitted to Council’s satisfaction;

e. The air conditioning unit is to be fitted with noise insulation;

f. Certification is to be submitted to Council’s satisfaction that all external walls within 900mm of the outbuilding/studio have achieved Fire Resistance Level 60/60/60;

2. Remove any lights on the exterior of the outbuilding/studio except the existing downlights. No further exterior lights are to be installed; and

3. Immediately cease the use of the outbuilding/studio for any commercial accommodation after providing any required notice periods for vacation. The outbuilding/studio is not to be rented out or used for any other commercial accommodation purposes, including short-term stays.

You must comply with this order by 5:00pm on 11 November 2025, except for paragraph 1(f), which must be complied with by 5:00pm on 28 February 2026.”

5. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. There are jurisdictional prerequisites in the terms of s 8.18 of the EPA Act to modify a development control order that must be satisfied before this function can be exercised.

7. On appeal to the Court, s 8.18 of the EPA Act provides as follows:

8.18 Appeals concerning orders

(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.

8. The parties’ decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to modify a development control order.

9. The appeal was made on 17 February 2025, within 28 days of the date the DCO was issued on 21 January 2025, in accordance with s 8.18(3)(a) of the EPA Act.

10. The Court has the power to modify a development control order on hearing an appeal as per s 8.18(4)(b) of the EPA Act.

11. The modified order may be given under s 9.34 of the EPA Act, as it consists of general orders in accordance with the table to Part 1 of Schedule 5 of the EPA Act and has been issued under the appropriate circumstances to the appropriate person, as follows:

| Modified Order | Column 1 | Column 2 | Column 3 | | | To do what? | When? | To whom? | | Paragraph 1 | 11 Compliance Order To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards | Building has been unlawfully erected and does not comply with relevant development standards. | The owner of the premises | | Paragraph 2 | 11 Compliance Order To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards | Building has been unlawfully erected and does not comply with relevant development standards. | The owner of the premises | | Paragraph 3 | 1 Stop Use Order Not to conduct or to stop conducting an activity on the premises | Premises are being used for a purpose for which a planning approval is required but has not been obtained | The owner of the premises or building |

12. 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.

13. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders:

14. The Court orders:

15. The appeal is upheld.

16. The Development Control Order issued by Council is modified pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW) in accordance with Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A (314 KB, pdf)