Sasterawan v Canterbury-Bankstown Council

Publication restriction: Nil

ex-tempore JUDGMENT

1. The First Applicant, who represents himself (and the Second Applicant), today moves on a motion filed on 7 March 2026, which seeks the following orders:

“1. The time for service and hearing of this Notice of Motion be abridged to the extent necessary.

2. The proceedings be listed for urgent directions before a Judge of the Court.

3. The Applicant be granted leave to amend the Applicant’s contentions in the proceedings in the form annexed to the affidavit of Wahyu Sasterawan affirmed 6 March 2026, or such other form as the Court considers appropriate.

4. Pending further order of the Court, the directions made on 4 March 2026 requiring expert conferencing and the preparation of joint expert reports be stayed or otherwise not take effect.

5. Alternatively, the directions made on 4 March 2026 requiring expert conferencing and preparation of joint expert reports be set aside or varied.

6. The Respondent identify and particularise the statutory and planning basis upon which the Respondent contends that the dwelling or dwellings on the subject property require development consent, a notional development application assessment, or are otherwise unlawful, including identification of: (a) the statutory provisions relied upon; (b) the planning instrument, provision, or regulatory mechanism said to give rise to that requirement; and (c) the factual basis upon which the Respondent contends development consent is required or was required.

7. The Respondent file and serve a concise statement (not exceeding 5 pages) identifying: (a) the factual basis upon which it contends the dwelling or dwellings are unlawful or require consent; (b) the statutory and planning provisions relied upon; and (c) the issues said to require determination by expert evidence.

8. Following compliance with Orders 6 and 7, the proceedings be relisted for further directions, including directions as to whether expert evidence is required.

9. The parties have liberty to apply on short notice, including pursuant to Order 16 of the orders made on 4 March 2026.

10. The Court make such further or other orders as it considers appropriate.

11. The costs of this Notice of Motion be reserved.”

2. The orders sought in the motion are opposed by the Respondent Council, represented today by Mr Bonanno, solicitor.

3. The motion is supported by an affidavit of the First Applicant dated 6 March 2026, which I will come to. Also tendered was a Building Code of Australia Report for an existing dwelling house at 658 Punchbowl Road, Wiley Park prepared for the Applicants by NSW Building Certifiers dated 8 July 2025 (BCA Report): Exhibit A.

4. To understand the motion, it is necessary to consider the orders that were made by the Registrar on 4 March 2026, which are as follows:

“The Court directs that:

1. The proceedings are fixed for hearing on 30.6.26.

2. The hearing is to commence on site at 9:30am and return to Court.

3. Under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (‘UCPR’), the Court makes the following directions regarding expert evidence:

i. ___ for the Applicant and Brett Daintry for the Respondent are to confer in relation to town planning issues under UCPR r 31.24 and prepare a joint expert report in relation to contentions 1 and 2 of the Respondents SOFAC filed 17 November 2025;

ii. the joint expert report is to be filed and served by 2.6.26.

iii. ___ for the Applicant and Brett Daintry for the Respondent are to confer in relation to Building Issues under UCPR r 31.24 and prepare a joint expert report in relation to contentions 3, 4, 5 and 6 Respondents SOFAC filed 17 November 2025;

iv. The joint expert report is to be filed and served by 2.6.26.

Unless the Court otherwise orders, expert evidence may not be adduced at the hearing otherwise than in accordance with the directions made by the Court in accordance with UCPR rr 31.19 and 31.20, including compliance with directions as to the time for service and filing of experts' reports and joint expert reports.

4. Parties are to serve a copy of these directions, the statements of facts and contentions, Division 2 of Pt 31 of the Uniform Civil Procedure Rules, the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules, and the Court policies on Joint Reports and on Conference of Expert Witnesses on all experts upon whose evidence they propose to rely within 3 business days of these orders being made, or, for a statement of facts and contentions (or reply) filed after the making of these orders, within 3 business days of them being filed or served.

5. Experts are directed to give written notice to the Court and the party instructing them if for any reason they anticipate that they cannot comply with these directions. In that case, or if the experts have failed to comply with these directions, the parties will promptly list the matter before the Court for directions and give written notice to the other parties. Default without leave of the Court can result in the imposition of sanctions. Any written expert evidence is to include acknowledgement that the expert has read and agrees to be bound by the Expert Witness Code of Conduct.

6. Experts are to ensure that a joint conference is a genuine dialogue between experts in a common effort to reach agreement with the other expert witness about the relevant facts and issues. Any joint report is to be a product of this genuine dialogue and is not to be a mere summary or compilation of the pre-existing positions of the experts.

7. A joint report is to identify the experts involved in its preparation, the date of their joint conferences, the matters they agreed about, the matters they disagreed about and reasons for agreement and disagreement. A joint report should avoid repetition and be organised to facilitate a clear understanding of the final position of the experts about the matters in issue and the reasoning process they used to reach those positions. Each expert is to sign and date the joint report.

8. Legal representatives are not to attend joint conferences of experts or be involved in the preparation of joint reports without the leave of the Court.

9. A party calling a witness may not, without the leave of the Court, lead evidence from the witness the substance of which is not included in a document served in accordance with the Court's directions.

10. If any witness is required for cross-examination, notice is to be given at least seven days before the conciliation conference and hearing.

11. A party who proposes to object to any part of an affidavit, statement or report is to file and serve notice of its objections, including the grounds in support, at least seven days before the conciliation conference and hearing.

12. The respondent consent authority is to file and serve a bundle of documents by seven (7) days before the conciliation conference and hearing. The bundle is to contain copies of relevant environmental planning instruments, relevant extracts from development control plans and policies, and documents evidencing the lodgement, processing and determination of the application by the consent authority, including all submissions from objectors, and the decision of the consent authority but is not to otherwise include copies of any documents annexed to the residential development appeal. Unnecessary copying and duplication of documents is to be avoided. The bundle is to be subdivided into relevant divisions, paginated and have a table of contents.

13. The respondent consent authority is to file and serve a notice of objectors who wish to give evidence at the hearing, of whom the consent authority is aware, by seven (7) days before the conciliation conference and hearing. The notice is to identify the objector, their address, where they wish to give evidence (on site or in Court) and whether they made a written submission about the application (in which event, the notice is to provide the page number of that submission in the key bundle). If there is no submission, the respondent consent authority should, if possible, file and serve a short statement identifying the topics about which the objector wishes to give evidence.

14. Draft conditions of consent

(a) The respondent consent authority is to file and serve draft conditions of consent (in both hard copy and electronic form) by fourteen (14) days before the conciliation conference and hearing.

(b) The applicant for consent is to file and serve its draft conditions in response (in both hard copy and electronic form) by seven (7) days before the conciliation conference and hearing.

(c) Each party's draft conditions of consent are to identify any variance from the standard conditions of consent for residential development, including conditions which have been added, amended or deleted.

15. If any party fails to comply with a direction of the Court that some action be taken by а specified time, and the defaulting party is not able to take that action within two days of the specified time, the defaulting party is to:

(a) relist the matter before the Court within three (3) days of the specified time; and

(b) provide to the Court on the relisting an affidavit explaining the non-compliance, the reason for the non-compliance and what action the party proposes to take and when the party proposes to take action to comply with the direction.

Note: The Court will usually order that the defaulting party pay the costs of the other party of and occasioned by the non-compliance and the relisting unless it appears to the Court that some other order should be made as to the whole or any part of the costs.

16. Liberty to re-list

The parties have liberty to restore on two (2) working days' notice.

17. Concurrent evidence of experts

At the hearing the evidence of experts is to be given by way of concurrent evidence, unless the hearing Commissioner directs otherwise.”

5. In relation to Order 3 above, the Registrar also made an order listing the matter for “an Online Court response by 12 noon, 27 March 2026 for the Applicants to advise their own town planning expert and/or building expert”.

6. The underlying proceedings to the motion are a Class 1 Appeal by the Applicants pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Council's refusal of a Building Information Certificate (BIC) relating to Lot 19, DP 12834, 658 Punchbowl Road, Wiley Park (the Property). The reasons for the Council's refusal of the BIC are set out in its Statement of Facts and Contentions (SOFAC). In summary, its contentions for the refusal of the BIC are these:

7. Non-compliance with the Canterbury-Bankstown Local Environmental Plan 2023 (LEP) relating to:

(a) land use permissibility - unauthorised dual occupancy; (b) non-compliance demonstrated with height controls; (c) floor space ratio control exceedances; (d) essential services – not demonstrated for stormwater, flood-safe design; and (e) stormwater management – no stormwater engineering plans.

2. Non-compliance with the Canterbury-Bankstown Development Control Plan 2023 (DCP) relating to:

(a) boundary setback encroachment; (b) exceedance of “impervious area” limitation; (c) landscape and deep soil non-compliance – no landscape plan submitted; (d) parking non-compliance; (e) waste management non-compliance – no plan submitted; and (f) failure to meet dual occupancy design controls.

3. Insufficient information to assess the application as to:

(a) BCA compliance report; (b) structural adequacy certification; (c) stormwater/flooding report; (d) Sydney Water approvals (BPS, Section 73); (e) BASIX Certificate; (f) RL survey; (g) Waste Management Plan; and (h) parking plans.

4. Failure to demonstrate Building Code of Australia compliance.

5. The First Applicant believes that the Council was wrong to refuse to issue a BIC. That is clear from the submissions he has made on the motion, including written submissions (dated 4 March 2026 but handed up to me today (AWS)). In summary form, the AWS contain the following submissions:

(a) the Council's approach is wrong, and proceeds from an "incorrect legal starting point". This submission seems to be related to the age of the property; (b) where longstanding construction "predates the modern planning regime… the legality must be assessed by reference to the law then in force"; (c) the key issue is one of "historical legality, not merely present administrative record reconstruction"; (d) if the dwelling or the relevant works or use were lawful when established, "then that historical lawfulness is legally significant under the current statute"; (e) it is insufficient for the Respondent "merely to point to current BCA non-compliances or the absence of modern approval material"; (f) under various provisions of the EPA Act, "historical lawfulness is the critical threshold inquiry for the existence of existing use rights or other lawful use protection"; and (g) the "real issues have not been properly defined" by the Council.

8. Reference was then made by the First Applicant to the BCA Report relating to the Property, that forms an attachment to the Applicant’s Class 1 Application. It was tendered by Mr Bonanno, as it details various BCA non-compliances, some of which are reflected in the contentions in the Council’s SOFAC. The First Applicant submitted that the BCA Report was prepared following a visual inspection only, and that properly understood, "[t]he BCA Assessment is not, of itself, the legal test of historical validity" and is "not a legal opinion that the dwelling was illegally erected under the old law".

9. As to the case management orders made by the Registrar on 4 March 2026, the submission made is that they were:

"Materially wrong in legal conception, seriously misguided in procedural sequence, and misconceived as an exercise of interlocutory case management…[and] …moved the parties into expert or technical processes before the Respondent had articulated the correct statutory pathway of its case".

10. Instead, the First Applicant submitted that before such directions were made, the Respondent should be required to "identify the historical legislative basis on which it says the dwelling or use was unlawful".

11. The AWS then go on to refer to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, and also to ss 56 to 58 of the Civil Procedure Act 2005 (NSW) concerning the facilitation of the just, quick and cheap resolution of the real issue in proceedings.

12. The First Applicant's affidavit that I have referred to is, in large part, a supplement to or a repetition of the submissions that have been made in writing. In significant part, though, the submissions that have been made to me by the Applicants are really the Applicants' seeking to run their appeal before me. That is something that I am not hearing today. Whether or not the contentions in the Council's SOFAC can be successfully maintained at a final hearing is not the key issue on the motion. The contentions are clear and concise, and set out the reasons why the BIC was refused, and why the Council contends it will succeed at the appeal.

13. Whether or not the Council will succeed on the Applicants' Class 1 Appeal is not in issue before me today. Nothing in the Applicants' evidence or submissions persuades me that I should make orders compelling the Respondent Council to put its contentions in its SOFAC the way the Applicants want the Council to put those contentions. Again, the contentions are clear and appropriately detailed.

14. I am also unconvinced that the orders made by the Registrar on 4 March 2026 should be either stayed or in any way set aside or varied. Those orders are appropriate case management orders for an appeal such as this. They contain an order for experts in town planning and building issues to confer, and produce a joint report, relating to the contentions in the Council’s SOFAC. The Applicants can seek to take up that order, or not, in terms of joint conferencing and a joint report.

15. The orders I make then are these:

16. The First and Second Applicants' notice of motion dated 7 March 2026 is dismissed.

17. Costs are reserved.

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