Australia, June 7 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. The substantive proceedings of this matter were commenced by a Class 4 Summons filed 19 February 2024 by which Burwood Council (the Applicant) sought a declaration that Wu Long Dai (the Respondent) had failed to comply with a Development Control Order (DCO) dated 29 March 2023, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). A further order was sought (related to the DCO) that the Respondent demolish and remove a 'shed-like' structure (which I will refer to as the Building) located at the north-eastern boundary of Lot 1 DP 303218, namely 36 Oxford Street, Burwood (which I will refer to as the Property). The Respondent is the owner of the Property. That Order is sought under s 9.46(2)(b) of the EP&A Act, based on the Respondent's failure to obtain a development consent for the erection and use of the Building, in breach of the former s 76A(1)(a) EP&A Act (in force at the time of construction) and its current equivalent, s 4.2(1) EP&A Act.

2. Antecedent to the substantive proceedings was a Notice of Motion filed 15 August 2024 to amend the relief claimed in the Summons and Points of Claim. The proposed Amended Summons sought the following relief (see the underlining for the amendments sought):

1) Declare that the Respondent has failed to comply with the Development Control Order No.3 given to him by the Applicant on 29 March 2023 (Ref No: 23/14204) which required the Respondent to demolish the building identified in the said Development Control Order located on land legally described as Lot 1 DP 303218 and known as 36 Oxford St, Burwood (Land).

2) Order that within 56 days of the date of these orders, the Respondent is to demolish the said building as required by the said Development Control Order and that he cause the demolition to be carried out by engagement of a qualified demolition contractor in accordance with the following orders.

3) Order that before the expiry of 28 days of the date of Orders being made by the Court the Respondent is to:

a) Engage a suitably qualified person ("the suitably qualified person") to:

i) demolish the structure that is located at the north-eastern boundary of 36 Oxford Street Burwood, NSW, 2134 ("the land"); and,

ii) remove the roof sheeting and screening that is attached to the north-eastern boundary fence on the land; and,

b) Ensure that all demolished items, debris and removed material being the result of the activities referred to at 3 (a) (i) and (ii) herein are taken from the land and lawfully deposited in an approved waste facility, and that receipts for tipping fees associated with the disposal of all items must be obtained.

4) Order that no later than 1 business day after the engagement of the suitably qualified person takes place, written notice of the engagement inclusive of the contact details of this person must be provided by the Respondent to the Applicant.

5) Order that within two days of the completion of the items referred to at Order 3 (b) herein, the Respondent is to provide to the Applicant all receipts for tipping fees for the disposal of demolished items, debris and removed material at an approved waste facility.

3. For the reasons that follow, on 5 May 2025 I made the orders sought above, and indicated that this judgment would soon follow.

Site details

History

4. The Property was transferred to the Respondent and Wen Jian Zhang as joint tenants on 28 June 2002: Exhibit A, p 345 and 348. At that time, the Property was zoned 2(C2) under the Burwood Planning Scheme Ordinance (BPSO). On 9 November 2012, the Burwood Local Environmental Plan 2012 (BLEP) came into force replacing the BPSO, and the land was re-zoned R1 (general residential). At the date of these proceedings, the Property consists of a two-storey terrace house, a car port, and the Building. The Building is a dwelling house, the erection and use of which required development consent by the Respondent under the BPSO (Exhibit B, Part IV Land Use Table, p 5) or subsequently the BLEP.

5. At all relevant times the terrace house on the Property, and the terrace house on the neighbouring property (34 Oxford Street Burwood) were heritage listed. They were listed as "heritage items" in schedule 9 in the 28 February 2002 version of the BPSO (the version in force when the Respondent purchased the land) and listed as "heritage items" in schedule 5, item number 187 of the BLEP.

*Rest of the document can be viewed at: https://www.caselaw.nsw.gov.au/decision/196a87f3d242e7a17f2928a1)

Disclaimer: Curated by HT Syndication.