Background
Mohammad and Shahnaz Khan owned a residential property at 36 New Street, Auburn, zoned R2 Low Density Residential. Cumberland Council issued Development Control Order No. ON2026/0298 on 26 March 2026, requiring demolition and restoration works. The order concerned a rear extension, altered stairs, conversion of a garage and rooms, balcony changes, and conversion of an outbuilding into a granny flat.
The Council contended that the works were either inconsistent with a complying development certificate or had been undertaken without required planning approval. The Khans brought a Class 1 appeal under s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW). At a Court-conducted conciliation conference, the parties agreed on modified terms.
The Court’s Holding
Commissioner Targett upheld the appeal and modified the development control order under s 8.18(4)(b). The modified order gave the applicants additional time to demolish or restore the relevant works, unless they obtained Building Information Certificates for identified works within agreed timeframes.
The Court held that it had power to make the agreed modification and that the agreement was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979 (NSW). The Commissioner did not undertake a merits assessment of the issues originally disputed; the orders implemented the parties’ conciliated agreement.
Key Takeaways
- A Class 1 appeal can result in modification, rather than revocation, of a development control order.
- Unauthorised works may remain subject to demolition or restoration requirements, while allowing time to obtain Building Information Certificates for specified works.
- Where parties reach a lawful conciliation agreement, the Court must dispose of the proceedings in accordance with it.
Why It Matters
The decision illustrates the Land and Environment Court’s practical role in resolving development-control-order disputes through conciliation. It confirms that agreed compliance pathways can combine removal or restoration obligations with an opportunity to regularise specified works through Building Information Certificates.