White v Blacktown City Council

File Number(s): 2024/186769

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 (EPA Act) being an appeal against the Development Control Order No.3 issued on 24 April 2024 ON2024/0193 (DCO) demolish works order issued under div 9.3, s 9.34 and Sch 5, Pt 1 of the EPA Act in respect of unauthorised use of and works carried out at land known as 49 Piccadilly Street and 81 Riverstone Road, Riverstone legally described as Lot 1 in DP 24647 (the Site).

2. The DCO required the following by 23 June 2024:

1. Demolish the approximately 200m2 detached secondary dwelling which has been constructed on the eastern side of the principal dwelling.

2. After completion of the demolition works, ensure all building waste is taken to a lawful waste facility.

All works are to be conducted in accordance with the provisions of Australian Standards 2601-2001 (The Demolition of Structures)

3. The reasons given in the DCO are reproduced as follows:

1. Council cannot be satisfied that the conversion of the secondary dwelling satisfies the structural, fire safety, health and amenity provisions of the National Construction Code.

2. Building works have been carried out without the required Construction Certificate.

3. Council cannot be satisfied that the required critical stage inspections were conducted during the construction of the secondary dwelling.

4. To ensure that the development complies with the applicable planning instruments and development controls.

5. To comply with the consent number DA-15-1281.

4. By way of relevant background, on 28 September 2015, Council granted consent for Development Application Number DA-15-1281 for a detached dual occupancy with two lot subdivision (the Consent). The Consent granted approval for the construction of a new, secondary dwelling subject to conditions of consent. The Consent approved the construction of:

‘… a single storey residence at the rear of an existing residence fronting Riverstone Road. The new dwelling consists of 3 bedrooms, combined kitchen/dining and living areas; a rumpus room and a single car garage with a second car space to be parked within the new driveway. The building is to be of a cladding system with a painted finish and metal roof construction. A new driveway is proposed for the existing residence with access off Piccadilly Street.’ (the new dwelling).

5. The Site remains as a single lot. On 28 March 2024, in response to a complaint about the new dwelling, Council conducted a site inspection which revealed:

a. The Site had been separated by the installation of a metal fence between the two dwellings;

b. The approximately 200m2 new dwelling had been unlawfully constructed without the benefit of a construction certificate and a subdivision certificate;

c. An unlawful awning (approximately 25m2) has been attached to the northeastern elevation of the new dwelling; [emphasis added]

d. Unlawful landfill and construction of retaining walls beneath the unlawful awning has been constructed on the Site; and

e. The new dwelling is unlawfully occupied.

6. On 22 October 2024, the parties attended a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) presided over by Commissioner Porter. The conciliation conference terminated on 29 October 2024 and on 7 November 2024, the matter was listed for hearing on 30 April and 1 May 2025.

7. Notwithstanding the termination of the conciliation conference, the parties have continued discussions and have reached agreement on the terms of a modified DCO in relation to the Site (Modified DCO). The Modified DCO is in the following terms:

1. Demolish the approximately 25m2 awning which has been constructed and attached to the north-eastern elevation of the new dwelling (the dwelling approved under DA-15-128);

2. After completion of the demolition works, ensure all building waste is taken to a lawful waste facility.

All works are to be conducted in accordance with the provisions of Australian Standards 2601-2001 (The Demolition of Structures)

Date by which compliance must be achieved:

Within 21 days of the date of the Court Orders made in Land and Environment Court Proceedings 2024/186769

8. The Court arranged a further conciliation conference under s 34(1) of the LEC Act between the parties on 1 May 2025. I have presided over the conciliation conference.

9. 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.

10. 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.

11. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to modify Development Control Order No.3.

12. 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 of the EPA Act to modify a DCO. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note provided to the Court.

13. The applicant is the registered proprietor of the Subject Land.

14. On 20 May 2024, the Applicant commenced Class 1 Proceedings appealing the DCO, being within the 28 day time period specified in s 8.18(3) of the EPA Act.

15. The Court has power to modify a development control order pursuant to s 8.18(4)(b) of the EPA Act.

16. The DCO was issued pursuant to s 9.34 and Item 3 in Pt 1 of Sch 5 to the EPA Act. Column 1 of Item 3 provides that the recipient of an order can be required “to demolish or remove a building”. Column 2 of Item 3 provides that such an order can be issued in circumstances where relevantly “a building is erected in contravention of this Act”. Column 3 of Item 3 provides that such an order can be issued to relevantly the “owner of building”.

17. No construction certificate was obtained as required under s 6.7 (then s81A) of the EPA Act. The requirements of Item 3 of Pt 1 of Sch 5 to the EPA Act are therefore met and the Council had power to issue the DCO pursuant to s 9.34 of the EPA Act.

18. The Court is satisfied that the DCO should be modified as agreed between the parties on the basis that:

19. The Council had power to issue the DCO and that power remains available to issue the Modified DCO relying on s 9.34 and Item 3 of Pt 1 of Sch 5 to the EPA Act in respect of works carried out on the Subject Land.

20. The Court has a broad power to modify a development control order pursuant to s 8.18 of the EPA Act.

21. 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.

22. 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.

Notations:

21. The Court notes the Applicant has given a signed undertaking on 29 April 2025 with respect to a Building Information Certificate and Development Application for the Dwelling a copy of which is at Annexure B.

Orders:

22. The Court orders:

23. The appeal is upheld.

24. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Development Control Order ON2024/0193 issued by Blacktown City Council on 23 April 2024 is modified in the terms set out in the Modified Development Control Order (Modified DCO) at Annexure A.

E Espinosa

Commissioner of the Court

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186769.24 (Annexure A) (132703, pdf)

186769.24 (Annexure B) (152300, pdf)