Panoyan v Ku-ring-gai Council

History of the development

1. On 6 October 2016, Council granted development consent to Development Application No DA0615/15 for alterations and additions to an existing dwelling together with construction of a secondary dwelling on the Site (Consent).
2. On 18 November 2016, Council modified the Consent following approval of MOD0190/16.
3. On 19 June 2017, Construction Certificate No CCPCA0248/17(the CC) was issued by Peter J Boyce and Associates for alterations and additions to an existing dwelling plus construction of a secondary dwelling.
4. In the period 18 January 2018 to 18 June 2020, significant works were carried not in accordance with the approved plans listed in Condition 1 of the Consent, or the approved construction certificate plans listed in the CC (the Works). The construction of the secondary dwelling and associated works the subject of this appeal was substantially completed in this period.
5. A lengthy list of the unlawful Works is set out in the parties Jurisdictional Statement (the Statement) at paragraphs 8(a) to (s).
6. In the period from 22 February 2019 to 7 August 2020 Council's actions and the Applicants' responses are detailed in the Statement at paragraphs 9 to 20. Numerous breaches of the EPA Act continued to be found on inspection of the Site. Council issued a number of Development Control Orders in this period in relation to the unauthorised Works and use of the secondary dwelling. The Applicants did not appeal against these orders.

The DCO the subject of this appeal

1. On 29 March 2023, Council conducted a site inspection of the Site.
2. On 5 September 2023, Council gave the Applicants a Notice of Intention to issue a development control order No EPA0130/23 (the DCO) regarding the unlawful Works.
3. On 16 October 2023, the Council issued the DCO.
4. On 1 November 2023, the Applicant commenced these proceedings appealing the DCO.
5. On 11 November 2024, the Applicants lodged Building Information Certificate No eBCU0129-24 with Council, seeking to regularise the unlawful works carried out on the Site.
6. On 14 November 2024, Development Application No DA0485-24 was lodged with Council, which seeks consent to use the Site for the purposes of a dual occupancy. This DA is not the subject of this appeal.
7. During the s 34 conference at Court the parties reached an agreement that a substituted order should be issued in lieu of the Order issued on 16 October 2023 (Substituted Order). The parties agree that all contentions in the SOFAC will be resolved by the issuing of the Substituted Order.
8. There are jurisdictional prerequisites which require my satisfaction before the power to allow the appeal and make the orders can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in the Statement mentioned above.

Satisfaction as to Jurisdiction

1. With reference to the Statement and the relevant provisions of the EPA Act concerning the issue of Development Control Orders and appeals made to this Court under s 8.18 EPA Act from these orders I note the following.
2. The statutory controls of relevance as to the jurisdiction to issue an order are found in s 8.18 and Div 9.3 and Sch 5 of the EPA Act.
3. The proceedings were filed within 28 days of the issue of the Order, satisfying the requirements of s 8.18(3) of the EPA Act.
4. There is no issue that the DCO was not validly issued. As stated above, Council issued a Notice of Intention to issue an order in compliance with the procedural fairness provisions of the EPA Act.
5. The Substituted Order remains a demolish works order. Item 3 of Pt 1 of Schedule 5 to the EPA Act allows a development control order to be issued as a demolition order in circumstances where: A building- • requiring a planning approval is erected without approval, or • requiring approval under the Local Government Act 1993 is erected without approval, or • is or is likely to become a danger to the public, or • is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or • is erected in contravention of this Act.
6. The parties agree that the Works were works that would have required planning approval and which were erected without approval, and thus the Works were also erected in contravention of this Act.
7. The Substituted Order also seeks to impose a compliance order under Item 11 of Pt 1 of Sch 5 of the EPA Act, which allows a development control order to be issued as a compliance order in circumstances where: 1. a planning approval has not been complied with; or 2. a building has been unlawfully erected and does not comply with the relevant development standards.
8. The parties agree that the Works have been carried out not in accordance with the consent granted by Council to DA0615/15 and Construction Certificate No CCPCA0248/17 and therefore a compliance order could be issued.
9. The Court standing in the shoes of the Council as the relevant enforcement authority has the jurisdiction to make an order to issue the Substitute Order pursuant to s 8.18(4)(c) of the EPA Act.
10. The Substituted Order is issued to the Applicants as owners of the Site, being persons identified in Column 3 of Pt 1 of Sch 5 of the EPA Act to whom a Demolish Works Order and Compliance Order can be issued.
11. The form of the Substituted Order aligns with the form of order that was supported by Preston CJ in Cai v Fairfield City Council [2022] NSWLEC 58.

Conclusion

1. Taking into account the Statement which I accept, the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that the Development Control Order No EPA0130/23 was lawfully issued, and there is no jurisdictional impediment to the Court making the proposed Orders set out below.
2. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I make the following orders pursuant to s 8.18(4)(e) of the EPA Act requiring compliance with the substituted Order at Annexure A.

Orders

1. The Court orders: 1. The appeal is allowed. 2. Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, Development Control Order No EPA0130/23 dated 16 October 2023 issued by the Respondent to the Applicants is substituted with the Order annexed to this judgment and marked Annexure A.

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: 21 February 2025