Background
Paul MacMahon carried out works from approximately February 2024 on a former public amenity building (a toilet block) at 98A Walker Street, Casino, NSW, which he had previously owned. The works included installing a bathroom, kitchenette, internal walls, large windows, an air conditioning unit, and a concrete ramp — effectively converting the structure into what MacMahon described as office premises for commercial use. The land is zoned E2 Commercial Centre under the Richmond Valley Local Environmental Plan 2012, in which residential accommodation is prohibited and office premises (as commercial premises) are permissible only with development consent. No development consent had been obtained for either the works or the change of use.
Richmond Valley Council issued two Development Control Orders on 19 June 2025: a Demolish Works Order (Order No. 3) requiring removal of the unlawful works, and a Restore Works Order (Order No. 10) requiring restoration of the site. MacMahon appealed both orders to the Land and Environment Court under s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW). MacMahon did not appear at the hearing on 9 April 2026, despite being informed of the listing by email and being contacted by telephone on the day, and filed no evidence beyond his Statement of Facts and Contentions in Reply. The Court proceeded in his absence, treating his pleadings as his submissions.
MacMahon’s case was that the works were exempt development not requiring consent, that no structural works were undertaken so the Building Code of Australia (BCA) did not apply, and that he was using the premises for commercial purposes rather than as a dwelling. He also sought a declaration permitting him to continue use consistent with the property’s purported approved use when he purchased it from the Council in 2004. The Council’s expert town planner, Kate Imeson, provided comprehensive planning evidence addressing the history of the site, existing use rights, and assessment of the works against the Codes SEPP.
The Court’s Holding
Commissioner Espinosa upheld the appeal in part, but not in the manner MacMahon sought. The Court found that the works carried out were not exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 — their scale, nature, and transformative character exceeded what could be characterised as minor alterations or repairs. The change of use from a public amenity building to office premises constituted development requiring consent under s 1.5 of the EPA Act, and in the absence of that consent, both the works and the use were unlawful. The Court also found that any existing use rights (as a community facility) would have been extinguished when the building ceased operating as a public amenity around 2007.
On the question of BCA compliance, the Court found MacMahon’s bare assertion that no structural works were undertaken and that the BCA did not apply to be unsupported by any evidence. The Court accepted the Council’s contention that the works needed to demonstrate BCA compliance to render the premises fit for commercial occupation, and could not do so on the material before it. The public interest favoured maintaining planning enforcement, as permitting the unauthorised development to remain would create an undesirable precedent and undermine confidence in the planning system.
Rather than simply dismissing the appeal, the Court exercised its powers under s 8.18(4) of the EPA Act to substitute and modify the orders in a manner reflecting that MacMahon’s own case was commercial, not residential, use. The Restore Works Order (Order No. 10) was revoked and substituted with a Stop Use Order (Order No. 1) directed at the unlawful use of the premises without development consent. The Demolish Works Order (Order No. 3) was modified in accordance with the Council’s without-prejudice draft conditions. The Court noted it had no power to make the declaration as to approved use sought by MacMahon — that relief would require Class 4 proceedings before a judge.
Key Takeaways
- A change of use from a public amenity building to office premises constitutes development requiring consent under the EPA Act, even where the occupier characterises the use as commercial rather than residential; the absence of consent renders both the works and the use unlawful.
- Existing use rights as a community facility will be extinguished where the lawful use has been abandoned — here, when the toilet block ceased operation around 2007 — and cannot be revived to authorise subsequent incompatible works.
- On appeal of a development control order under s 8.18(4) of the EPA Act, the Court has broad discretion to revoke, modify, or substitute orders with any order the enforcement authority could have given, including replacing a restore order with a stop use order where the evidence reveals the issue is unlawful use rather than unlawful works alone.
- An applicant who fails to appear at a DCO appeal hearing and files no evidence bears the consequence of the Court proceeding in their absence; pleadings filed will be treated as submissions, but bare assertions unsupported by evidence will not be accepted.
- A declaration as to the lawful use of land is not available in Class 1 proceedings before a commissioner; parties seeking such relief must commence Class 4 proceedings before a judge.
Why It Matters
This decision illustrates the limits of the “exempt development” pathway for property owners seeking to carry out works without consent. Works that are transformative in character — reconfiguring internal spaces, installing new wet areas, altering window openings, and changing the use of a building — will not qualify as exempt development simply because they are framed as repairs or minor alterations. The case is a reminder that even where an owner insists a use is commercial rather than residential, development consent remains a prerequisite, and the planning enforcement machinery of the EPA Act will apply equally.
The case also demonstrates the Court’s willingness to craft orders that match the actual factual matrix rather than mechanically dismissing or upholding a DCO appeal. By substituting a restore order with a stop use order, the Court tailored relief to the true issue — unlawful use without consent — while preserving the demolition order for the physical works. For local councils and planning practitioners, the decision reinforces that careful framing of DCO grounds and without-prejudice draft conditions can significantly influence the Court’s exercise of its s 8.18(4) discretion.