Voldine Pty Limited v Canterbury-Bankstown Council

Cases Cited: Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251
Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28
Lederer v Sydney City Council (2001) 119 LGERA 350; [2001] NSWLEC 272

Texts Cited: Canterbury Development Control Plan 2012
Canterbury Development Control Plan 2022

Category: Principal judgment

Parties: Voldine Pty Limited (First Applicant)
Petank Holdings Pty Ltd (Second Applicant)
Canterbury-Bankstown Council (First Respondent)
E&R Developments Pty Ltd (Second Respondent)

Representation: Counsel:
T March (Applicants)
G Farland (First Respondent)
Solicitors:
McKees Legal Solutions (Applicants)
Canterbury-Bankstown Council (First Respondent)

File Number(s): 2023/134281
2024/253384

Publication restriction: Nil

Judgment

COMMISSIONER:

1. This judgment deals with the following two appeals:

2. Proceedings 2023/134281 (DCO Proceedings) – an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the Development Control Order issued by the respondent to the applicants on 27 March 2023 under s 9.34 and Pt 1 of Sch 5 of the EPA Act, requiring the applicants to demolish and remove two awnings attached to an existing warehouse located on land identified as Lot 1 in Deposited Plan 623014, known as 8-9 Frazer Street, Lakemba 2195, NSW (Frazer Street Premises).

3. Proceedings 2024/253384 (BIC Proceedings) – an appeal pursuant to s 8.25 of the EPA Act against the respondent’s refusal of Building Information Certificate (BIC) Application No. BC-23/2024 (BIC Application), seeking to regularise the “construction of awning over car parking area” on the Frazer Street Premises (see Class 1 Proceedings in the BIC Proceedings (Ex F), tab 1). It is important to note that the BIC Application seeks to regularise most, but not all of the existing structures as indicated on the plan titled A10.01 at tab 4 of the Class 1 Application in the BIC Proceedings (Ex F) which depicts the “works subject to BIC Application”.

4. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Frazer Street Premises is approximately 3,071m2 and, at the time the DCO was issued, zoned IN2-Light Industrial under the Canterbury Local Environmental Plan 2012 (2012 CLEP).

4. The applicants are the registered proprietors of the Frazer Street Premises.

5. According to the Amended Statement of Facts and Contentions in the DCO Proceedings (DCO SOFAC) (Ex 7), the Frazer Street Premises contains:

6. a factory that has been converted to a warehouse which has approximately 1,356m2 of floor space coupled with 552m2 of office; and

7. 17 “at grade” parking spaces with un/loading occurring on site.

8. As at the date the DCO was issued, two awnings and supporting structures (collectively, Structures) had “been erected above the carparking area that appears to service, at least, (the) existing warehouse on the Property” (DCO SOFAC at par 2). The DCO SOFAC goes on to state that (at par 2):

9. The roof of the Structures is 5.15m high, irregular in shape and covers most of the front setback of the Frazer Street Premises.

10. At its deepest, the Structures are 28.771m and approximately 50m wide.

11. It is accepted by the parties that the Structures require, but do not presently have, the benefit of development consent.

12. During the course of the DCO and BIC Proceedings, it became apparent that the Frazer Street Premises forms part of three united buildings for the purposes of fire safety. These united buildings are:

13. the Frazer Street Premises;

14. Lot 4 in Deposited Plan 710512, known as 492-494 Punchbowl Road, Lakemba (Punchbowl Road Premises); and

15. Lot 5 in Deposited Plan 6727, known as 78 Yerrick Road, Lakemba (Yerrick Road Premises),

16. (collectively, the United Buildings).

17. It appears to be agreed that the United Buildings are operated in an integrated and collective manner for the purposes of operating a stone manufacturing business across the United Buildings and thus should be treated, for the purposes of the BCA, as if they are a single building (see Joint Expert Report of the Fire Safety Experts, prepared by Mr Saad and Mr Wynn-Jones, filed 13 February 2025 (Ex 13) pp 3 and 5) . This is relevant for the purposes of the fire safety implications associated with the Structures. Whilst fire safety was not a reason given in the DCO as issued, the respondent sought and was granted leave to amend its contentions to reflect fire safety concerns, ultimately culminating in the final SOFAC filed in the DCO Proceedings, being Ex 7.

18. The United Buildings are all zoned IN2 Light Industrial and depicted on the following figure (see Ex 7 at par 8):

19. The Punchbowl Road Premises and Yerrick Road Premises are relevantly owned by E&R Developments Pty Ltd (now second respondent to the DCO and BIC Proceedings which will be discussed in more detail in due course).

20. This matter has a convoluted history with multiple different orders issued, applications made, and appeals commenced. However, for the purposes of determining the DCO and BIC Proceedings before me, it is sufficient to record that:

21. The applicants lodged a development application on 14 February 2023 seeking consent for the Structures which was refused by the respondent on 24 March 2023 (Development Application). The refusal of the Development Application was not appealed and is not the subject of these proceedings.

22. The respondent issued the DCO the subject of the DCO Proceedings to the applicants on 27 March 2023 pursuant to s 9.34 and Item 3 “Demolish works order” in Pt 1 of Sch 5 of the EPA Act.

23. The BIC application the subject of the BIC Proceedings was lodged on 5 March 2024 and refused on 5 July 2024.

24. The applicants commenced Class 1 proceedings:

(a) on 27 April 2023 in respect of the DCO, being within the time period specified in s 8.18(3) of the EPA Act; and (b) on 10 July 2024 in respect of the refusal of the BIC Application, being within the time period specified in s 8.25(2) of the EPA Act.

13. The DCO Proceedings were commenced prior to the BIC Proceedings, and orders were made on 12 July 2024 to adjourn the hearing in the DCO Proceedings so it could be heard concurrently with the BIC Proceedings with an order made that evidence in one proceedings be evidence in the other.

14. The DCO Proceedings and BIC Proceedings were heard on 27 and 28 February 2025 with judgment reserved by a Commissioner of this Court on 28 February 2025. During the hearing, the Commissioner granted a motion by the applicants to join E&R Developments Pty Ltd to both proceedings as second respondent.

15. Due to extenuating circumstances, the matter was required to be reheard by a different Commissioner and I presided over the re-hearing of the DCO and BIC Proceedings on 18 July 2025 with judgment reserved on the same day.

16. The re-hearing involved consideration of the evidence before the original Commissioner with no new evidence tendered or submissions made other than in response to my questions regarding jurisdiction.

Issues

17. It was not disputed that the DCO was validly issued insofar as the Structures required, but did not have, the benefit of development consent. Thus, it was open to the consent authority to issue a development control order requiring the demolition of the Structures by the applicants as the owners of the Structures, pursuant to s 9.34 and item 3 of Sch 5 of the EPA Act.

18. Based on the way the case was pleaded at hearing, the key issue in the proceedings therefore became whether the Court should:

19. uphold the DCO other than to make a minor modification to extend the timeframe for compliance to three months from the date of the orders, and otherwise dismiss the DCO Proceedings and BIC Proceedings, as proposed by the respondent; or

20. exercise its discretion to substitute the DCO for a number of orders, including fire safety orders, in conjunction with a regime for obtaining development consent to carry out various works, and otherwise defer the determination of the BIC Proceedings until the works required by the various substituted orders and proposed development consent are carried out, as proposed by the applicants.

21. For the reasons that follow, I consider it appropriate to:

22. Modify the DCO as proposed by the respondent to extend the timeframe for compliance to three months from the date of the orders. Otherwise however, the DCO should remain on foot and the applicants’ appeal is otherwise unsuccessful.

23. Dismiss the appeal in the BIC Proceedings.

The role of the Court on appeal

20. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the LEC Act provides as follows:

39 Powers of Court on appeals

…

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

21. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

(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.

22. Section 8.25(3) of the EPA Act relevantly gives the Court the following powers on an appeal against an application for a BIC:

(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.

Evidence

23. The applicant relies on the following evidence:

24. expert evidence of Mr Osman Chowdhury (civil and stormwater engineering);

25. expert evidence of Mr Corbett (traffic);

26. expert evidence of Mr Gerard Turrisi (town planning); and

27. expert evidence of Mr Steven Saad (building surveying, fire safety).

28. The respondent relies on the following evidence:

29. expert evidence of Mr Brett Daintry (town planning, surveying and traffic); and

30. expert evidence of Mr Michael Wynn-Jones (fire safety).

31. The following joint expert reports were filed and subsequently tendered at the hearing:

32. Joint Expert Report of the Stormwater and Engineering Experts prepared by Mr Chowdhury and Mr Daintry filed 3 July 2024 (Ex 2) (Joint Stormwater Report);

33. Joint Expert Report of the Traffic Experts prepared by Mr Corbett and Mr Daintry filed 3 July 2024 (Ex 3) (Joint Traffic Report);

34. Joint Expert Report of the Town Planners prepared by Mr Turrisi and Mr Daintry filed 5 July 2024 (Ex 4) (Joint Planning Report);

35. Supplementary Joint Expert Report of the Traffic Experts, prepared by Mr Corbett and Mr Daintry, filed 30 January 2025 (Ex 9) (Supplementary Joint Traffic Report);

36. Supplementary Joint Expert Report of the Town Planners, prepared by Mr Turrisi and Mr Daintry, filed 3 February 2025 (Ex 10) (Supplementary Joint Planning Report);

37. Supplementary Joint Expert Report of the Stormwater and Engineering Experts prepared by Mr Chowdhury and Mr Daintry filed 3 February 2025 (Ex 11) (Supplementary Joint Stormwater Report);

38. Joint Expert Report of the Building Surveyors, prepared by Mr Saad and Mr Daintry, filed 4 February 2025 (Ex12) (Joint Building Report); and

39. Joint Expert Report of the Fire Safety Experts, prepared by Mr Saad and Mr Wynn-Jones, filed 13 February 2025 (Ex 13) (Joint Fire Report).

Legislative and planning framework

26. Section 9.34 of the EPA Act relevantly provides that development control orders may be given in accordance with the table in Pt 1 of Sch 5 of the EPA Act.

27. Relevant to this matter is item 3, extracted as follows:

| | Column 1 | Column 2 | Column 3 | | | To do what? | When? | To whom? | | 3 | Demolish Works Order To demolish or remove a building | 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. | Owner of building or, if the building is situated wholly or partly in a public place, the person who erected the building |

28. Section 6.25 of the EPA Act relevantly provides:

(1) A building information certificate is to be issued by a council only if it appears that—

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i) to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

(2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4).

29. For completeness I note that the local environmental plan (LEP) applying to the Frazer Street Premises has changed multiple times since the DCO was issued, with the most recent LEP being the Canterbury Bankstown Local Environmental Plan 2023 (2023 BCLEP). However, although this issue was not canvassed by the parties in the appeal, the zoning of the Frazer Street Premises has remained IN2 Light Industrial under the relevant plans and nothing material turns on which version of the LEP applied at the date of the DCO, BIC Application, hearing, nor date of judgment.

30. Further, the Canterbury Development Control Plan 2012 (DCP 2012) which applied at the time the DCO was issued was replaced with the Canterbury Development Control Plan 2022 (DCP 2022). The DCP 2022 has no savings provisions. Again, the parties did not argue that any matters of substance turn on which version of the development control plan applies in either proceedings.

Should the DCO be upheld or substituted for multiple different orders?

31. In order to determine this question, it is necessary to understand the position of the parties, and in particular, the regime proposed by the applicants to resolve the issues in this case. This is most clearly understood by the orders the applicants submit should be made in these proceedings. Although there were various iterations of the orders proffered by the applicants, following questions regarding the jurisdiction of the Court to make the orders proposed, the final version of the proposed orders are extracted below:

“The Court orders that the development control order issued by Canterbury Bankstown Council dated 27 March 2023 on Lot 1, DP 623014, No. 8-9 Frazer Street, Lakemba NSW 2195 is substituted with the following orders:

1. Demolish and remove the two (2) unauthorised awnings attached to the existing warehouse at the premises, facing Frazer Street, within 90 days.

2. Demolish and remove the section of awning shown to be removed on plans No A1001 (Revision 6), A1101 (Revision 5), A1102 (Revision 5), A11.61 (Revision *5) and A4001 (*Revision 6) dated 6 February 2025 within 90 days.

3. Carry out the BCA works shown in NCC (National Construction Code) Compliance Assessment Report, No 3U015-03 dated 15 October 2024 within 180 days.

4. Carry out the works within Section 6 ‘united building’ upgrade strategy within the joint expert report of Steven Saad and Michael Wynn-Jones dated 13 February 2025 within 180 days.

5. The Court notes that the Applicant undertakes to lodge a development application (DA) for the following within 30 days:

a. To reconstruct the stormwater drainage system, as referred to in the Joint Stormwater Engineering Report (Exhibit 2) at paragraph 8, unless the rectification works within pages 1, 5 and 8 of the CCTV Report prepared by Quoron Pty Ltd dated 1 November 2023 have been undertaken and Council has been provided with certification that the works have been done and the stormwater system is capable of functioning (sic) in accordance with AS/NSZ 3500.3 2018.

b. To demolish and remove the hardstand area containing spaces P20, P21 and P22 shown in plan number A01.01 (revision 1) dated 5 February 2024 with the adjacent concrete areas shown as proposed landscape area on plan A11.61 (revision 6) dated 6 February 2025.

c. To carry out landscape works as shown on Plan No. A4001 (Revision 06) dated 6 February 2025 and A11*.61 (revision 5) dated 6* February 2025.

d. To amend the required parking spaces to 21 spaces from condition 1.7 of DA83/01.

e. Change the use of the building at 7-8 Frazer Street Lakemba to a warehouse.

6. Order 1 is suspended until 90 days from the final determination of the DA referred to in Order 5, including any final determination of any appeal of the DA, or 180 days, whichever is the later, and no longer has effect is the works referred to in orders 2, 3, 4 and 5 have been undertaken.

7. The building information certificate appeal, h**earing in proceedings 2024/00253384 is to be vacated until the date referred to in Order 6 for the works listed in the orders to be carried out.

8. Either party is granted leave to relist the matter on 3 days’ notice to discharge any continuing obligation from these orders.**”

32. For ease, I have grouped the proposed orders into categories. Proposed Order 1 will be referred to as the Complete Awning Demolition Order. Proposed Order 2 will be referred to as the Partial Awning Demolition Order. Proposed Order 3 will be referred to as the Compliance Order. Proposed Order 4 will be referred to as the Fire Safety Order. Proposed Order 5 will be referred to as the DA Order. Proposed Order 6 will be referred to as the Deferred DCO Order and proposed Order 7 will be referred to as the Deferred BIC Order. It is important to note here that the works proposed to be carried out in accordance with the DA Order have been dealt with in this manner because there is no head of power in Sch 5 to the EPA Act to order their occurrence subject to a development control order.

Applicants’ position

33. Firstly, the applicants submit that this proposed approach is appropriate as the experts have agreed on the works required to be carried out:

34. to the United Buildings to make them safe from a fire perspective and that it is open to the Court to issue the Fire Safety Order pursuant to Pt 2 of Sch 5 of the EPA Act, being an order that the consent authority (or Court) could have ordered (see s 8.14(1) of the EPA Act). The applicants further argue that the fire safety works required are sufficiently detailed in the Joint Fire Report and NCC (National Construction Code) Compliance Assessment Report, No 3U015-03 dated 15 October 2024 (known as the Saad Report) and provide “a series of precisely described (sic) things that need to occur to address the performance of the building from a fire safety perspective” (see T 28 February 2025 p 109 39-41);

35. in order to comply with the NCC and that it is open to the Court to issue the Compliance Order, as compliance with the NCC is a “development standard” that falls within the scope of an item 11 Compliance Order in Pt 1 of Sch 5 of the EPA Act. The applicants similarly argue that the works required to comply with the NCC are similarly sufficiently detailed in the Saad Report, being the report referenced in the Compliance Order;

36. in relation to stormwater; and

37. in relation to traffic and parking.

38. As the stormwater, traffic and parking works can’t be ordered by way of a development control order, the applicants submit that the proposed approach of noting the lodgement of a development application to seek consent to do these works is appropriate. Similarly, the applicants argue that it is reasonable to defer the operation of the Complete Awning Demolition Order until such time as consent is obtained and the works carried out, or else consent is finally and determinatively refused.

39. Secondly, the applicants submit that, as E&R Developments were joined to both proceedings, there is no impediment to the Fire Safety Orders being issued as proposed, given that they affect premises beyond the Frazer Street Premises and are beyond the scope of the original DCO.

40. Finally, the applicants submit that it is necessary to defer the determination of the BIC Proceedings until the works proposed by the applicants’ proposed orders and future development application are completed. The applicants relevantly submit (see T 27 February 2025 p 47 48-50 and p 48 1-5):

“If those works are done, then the BIC appeal should be upheld. And if the works are not done and the council persuades you that the fire safety risks are such that the awning should come done, then obviously, the BIC appeal is refused. But what happens if the BIC appeal is refused now is that council will be in a position to immediately issue us with a further order to remove the part of the awning. But the experts have all agreed can remain, subject to the fire safety upgrade works being done.”

Respondent’s position

37. Conversely, the respondent argues that the Court should not exercise its discretion to substitute the DCO in the manner proposed by the applicants as:

38. The DCO was validly issued (see Respondent Written Submissions (RWS) at [33]) on the basis that:

(a) the Structures required a planning approval; (b) the Structures were erected without approval; and (c) the DCO was directed to the owners of the Structures.

2. The fact that there is no existing development consent for the Structures is fatal to the appeal. Further, the Development Application lodged by the applicants to regularise the Structures was refused and not appealed.

3. The applicants have had ample time to either appeal the refusal of the Development Application or submit a new application containing the works now proposed by the applicants’ proposed substituted orders. The proposed regime for substituted orders and future development applications seeks to inappropriately invite the Court to embark upon a merit assessment of the Structures, which is not the purpose of a DCO (Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 at [22]).

4. It is agreed by the fire safety experts that the contentions regarding fire safety and building code non-compliances in the DCO SOFAC are made out unless further works are carried out.

5. The Joint Fire Report does not definitively proscribe the works that are required to be carried out to make the Frazer Street Premises or United Buildings safe. It is a design brief only, with the analysis required to confirm that the agreed proposed performance solutions will actually work, deferred to a later date. This can be contrasted with a development application process, where the construction certificate (CC) process would clarify and confirm the required level of specificity and detail. Here, the applicants propose these works be carried out pursuant to orders, where the CC process, or opportunity, is lost.

6. It is inappropriate to replace or modify the DCO to relate to a wholly different parcel of land, with different parties (Lederer v Sydney City Council (2001) 119 LGERA 350; [2001] NSWLEC 272).

7. It is inappropriate to defer the hearing of the BIC Proceedings as this is tantamount to an “amber light approach”, which has been rejected by the Court of Appeal (see Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [200]).

8. It is the respondent’s ultimate submission that the following orders be made:

*“*Proceedings 2023/00134281

In proceedings 2023/00134281 the development control order issued by Canterbury Bankstown Council dated 27 March 2023 on Lot 1, DP 623014, No 8-9 Frazer Street, Lakemba NSW 2195 is modified by replacing the date “1 May 2023” by the date “three months after the date of this order” where it appears on page 2 of that order.

The proceedings are otherwise dismissed.

Proceedings 2024/00253384

The proceedings are dismissed.**”

Consideration

39. The applicants propose a rather unorthodox approach in these proceedings, being for the Court to substitute the DCO which contained a single demolition order pursuant to item 3 of Pt 1 of Sch 5 to the EPA Act issued to the applicants, with multiple different orders finding their basis in different parts of Sch 5 of the EPA Act, impacting both the applicants and third parties, and a proposed order noting the future lodgement of a development application to effectively “catch” the remaining works that are agreed to be required.

40. I accept the undisputed assertion of the respondent that the DCO was validly issued as a demolish works order for the purposes of s 9.34 and Pt 1 of Sch 5 of EPA Act.

41. I decline to exercise the Court’s discretion to substitute the DCO in the manner proposed by the applicants for the following reasons.

42. I accept the respondent’s submission that the appropriate vehicle for seeking to retain the Structures in this matter (in the form proposed by the BIC Application) was a development application in conjunction with the BIC Application. The applicants elected not to appeal the refusal of the Development Application and the opportunity to resolve the DCO Proceedings by way of a BIC Application and complementary development application was lost.

43. This is primarily because I accept the respondent’s submission that the Joint Fire Report and Saad Report are essentially a design brief. Although I accept the performance solutions proffered in both reports:

44. are detailed in nature; and

45. were agreed by the parties’ respective fire experts,

46. it was conceded in oral evidence that the performance solutions needed to be further analysed and confirmed or amended at a future point in time (see T 28 February 2025 p 106 32-50 and p 107 1-13).

47. In this regard I place material weight on the following exchange (T 28 February 2025, p 101 21-42):

FARLAND: Mr Saad, when you prepared your report of October 2024 you identified a number of non-compliances with the deem to satisfy provisions of the BCA in respect of these three buildings we’re talking about, didn’t you?

WITNESS SAAD: Correct.

FARLAND: And you indicated that in relation to those non-compliances or some of them, let’s take one of them, the general floor area and volume limitations, you indicated that a performance solution should be obtained from an accredited fire engineer to address the issue in relation to that matter, correct?

WITNESS SAAD: Correct.

FARLAND: You haven’t obtained that performance solution yet, have you?

WITNESS SAAD: Haven’t obtained that, no.

FARLAND: In fact that is the same of each of the performance solutions that you identify in your report, isn’t it?

WITNESS SAAD: Correct.

45. I have placed significant weight on the opinion of the fire experts that the Structures and the United Buildings, without further fire safety works, are “unsafe” (Ex 13, p 8). In my view, it is inappropriate to order fire safety works which cannot be definitively known, or without a clear vehicle for adjustments and augmentation if required, in circumstances where the Structures pose fire safety risk. Based on the facts and evidence before me in this case, and having regard to the numerous and significant works required to be carried out to the Frazer Street Premises and United Building more broadly (including works relating to fire resistance, access and egress, firefighting equipment, smoke hazard management and emergency lighting, exit lighting and emergency warning and intercom), I am of the view that a fire safety order in the terms proposed by the applicants is too uncertain to be ordered in the manner proposed.

46. In respect of the alternative suggested by the applicants at hearing, I am not prepared to order that the works required to be carried out by either the proposed Compliance Order or Fire Safety Order should be subsumed within the list of matters required to be included in the proposed DA Order to overcome the uncertainties that the respondent has identified. The applicants had the opportunity to lodge a further development application in the time since the Development Application was refused, or appeal the refusal of the Development Application so that these matters could be considered in an efficient and thorough manner with the ability for appropriate mechanisms such as conditions of consent and the requirement to obtain a CC etc. It is not for the Court to fix deficiencies in the applicants’ case and now defer these matters to a future development application in the circumstances of this case.

47. As it is undisputed that fire safety works are required to make the Frazer Street Premises and/or United Building safe, all of the applicants’ proposed substituted orders must necessarily fail as the Structures should be removed if they cannot be made safe in the manner proposed.

48. Similarly problematic to the applicants’ case is the applicants’ submission that it is appropriate to defer the determination of the BIC Proceedings until the fate of the proposed development application is known and appeals exhausted. This is an inappropriate course that does not provide adequate or timely certainty or finality to the BIC Proceedings. I decline to defer the determination of the BIC Proceedings on this basis.

49. As the parties agree that considerable work is required to the Frazer Premises and United Buildings in general in order for the Structures to remain in any form, it is clear that the BIC Application is incapable of being approved at this time and the appeal in the BIC Proceedings must fail.

50. However, I do consider it appropriate to modify the DCO in the manner proposed by the respondent to provide three months from date of this judgment for compliance, which I consider to be fair and reasonable in the circumstances. The Court has power to order the modification of the DCO pursuant to s 8.18(4)(b) of the EPA Act.

Orders

Proceedings 2023/00134281

51. The Court orders that:

52. The development control order issued by Canterbury Bankstown Council dated 27 March 2023 in respect of Lot 1, DP 623014, No 8-9 Frazer Street, Lakemba NSW 2195, is modified by replacing the date “1 May 2023” with the date “14 January 2026” where it appears on page 2 of that order.

53. The proceedings are otherwise dismissed.

54. The exhibits are returned except for Ex 13 and 14.

Proceedings 2024/00253384

52. The Court orders that:

53. The appeal is dismissed.

54. The exhibits are returned except for Ex 13 and 14.

N Targett

Commissioner of the Court

**********