V&L (Sydney) Pty Ltd v Fairfield City Council

Catchwords: DEVELOPMENT CONTROL ORDER APPEAL – unauthorised works – demolish works order – conciliation conference – agreement between the parties – orders
DEVELOPMENT CONTROL ORDER APPEAL – unauthorised works – restore works order – conciliation conference – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.18, 9.34, Sch 5, Pt 1
Land and Environment Court Act 1979, s 34

Cases Cited: Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39

Category: Principal judgment

Parties: V&L (Sydney) Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation: Counsel:
S Siv (Solicitor)(Applicant)
S Shneider (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Houston Dearn O’Conner (Respondent)

File Number(s): 2024/174430 and 2024/174439

Publication restriction: No

Judgment

1. COMMISSIONER: This judgment deals with two Class 1 Appeals pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being appeals against two separate development controls orders (DCO) pursuant to s 9.34 of the EPA Act relating to unauthorised alterations and additions to a dwelling at 68 Hume Highway, Lansvale legally described as Lot 5 in DP 657104. (the Site).

2. The first DCO Appeal is proceedings 24/174430 being an appeal from a Demolish Works DCO Ref: CRM 566617/2023/LT (274/2024) Order 3 Demolish Works Order issued 15 April 2024 (Demolish Works DCO).

3. The second DCO Appeal is proceedings 24/174439 being an appeal from a Restore Works DCO Ref: CRM 566617/2023/LT (275/2024) Order 10 Restore Works Order issued 15 April 2024 (Restore Works DCO).

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 9 May 2025. I presided over the conciliation conference.

5. 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 Demolish Works DCO and the Restore Works DCO.

6. 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.

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

8. 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 to be the terms of s 8.18 appeal a DCO. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the court.

9. The source of power to issue a DCO come from s 9.34 of the EPA Act and in this case in accordance with the table at Part 1 of Schedule 5: Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39 at [14] and [23]

10. V&L (Sydney) Pty Ltd (the Applicant) is the owner of the Site.

11. On 5 July 1996, development consent was granted to DA 260/96 which approved the Site for a ‘Pool & Spa Display/Storage/Administration Centre’. On 10 July 1996, a building approval was granted for Building Application No. B 841/96 for the Site.

12. The terms of s 8.18(4) of the EPA Act provides the powers of the Court on an appeal against an Order as follows:

8.18 Appeals concerning orders

(4) On hearing an appeal, the Court may—

revoke the development control order, or

modify the development control order, [emphasis added] or

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

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

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

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

13. The modified Demolish Works DCO and Restore Works DCO agreed by the parties are consistent with the powers of the Court set out in section 8.18(4)(b) of the EPA Act because the modification to the Demolish Works DCO is limited to changing the date for compliance and the modification to the Restore Works DCO is limited to the use of clearer language and a change to the area to be restored.

14. 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. I adopt the reasons given by the parties as set out in this judgment.

15. 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 proceedings 24/174430 Demolish Works DCO:

16. The Court orders:

17. The appeal is upheld.

18. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order No.3 issued to the Applicant on 15 April 2024 by Fairfield City Council in relation to Lot 5 in DP 657104, known as 68 Hume Highway, Lansvale as shown in the modified Order in Annexure A.

Orders proceedings 24/174439 Restore Works DCO:

17. The Court orders:

18. The appeal is upheld.

19. Pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Court modifies the terms of the Development Control Order No.10 issued to the Applicant on 15 April 2024 by Fairfield City Council in relation to Lot 5 in DP 657104, known as 68 Hume Highway, Lansvale as shown in the modified Order in Annexure B.

E Espinosa

Commissioner of the Court

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Annexure A (306 KB, pdf)

Annexure B (243 KB, pdf)