Background
HSEM Management Pty Ltd owned approximately 10.17 hectares at 1 Water Street, Wallacia. Two large sheds were constructed on the property without development consent, and trees were removed where the sheds were built. Penrith City Council issued a development control order requiring construction of Shed 1 to cease and the structure to be demolished. The Council also refused applications for building information certificates for both sheds.
Michael Urusoglu separately sought development consent to use Shed 1 for storage associated with the property’s residential use and Shed 2 for private indoor basketball and pickleball. The applications also covered internal works, fill, hardstand areas, drainage, driveway sealing, landscaping, earthworks, and related work. After the Council refused both applications, the applicants brought five interrelated Class 1 appeals, which the Court heard together following an unsuccessful conciliation.
The land was partly zoned C2 Environmental Conservation and partly C3 Environmental Management, with the sheds situated in the C3 zone. The proceedings raised questions about whether the proposed uses were permissible as ancillary residential uses and whether the development was acceptable in light of biodiversity, tree removal, flooding, bulk, scale, and local character.
The Court’s Holding
The Court upheld all five appeals. Exercising the Council’s functions on rehearing, it granted consent to the amended development applications for Shed 1 and Shed 2, subject to the respective conditions contained in Annexures A and B to the judgment.
The Court also directed the Council, under s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW), to issue building information certificates for both sheds within seven days. It revoked the 11 December 2024 development control order concerning Shed 1 under s 8.18(4)(a), removing the requirement that the structure be demolished.
The result permitted the sheds to remain and authorized their proposed residentially associated uses and ancillary works, but only in accordance with the amended applications and the Court-imposed conditions. The judgment resolved together the development-consent, building-certificate, and enforcement consequences of the sheds’ original unauthorized construction.
Key Takeaways
- The Court may rehear a Class 1 planning appeal using fresh evidence and exercise the functions and discretions that belonged to the local council.
- Unauthorized construction does not necessarily require demolition: later development consent and building information certificates may regularize the planning and building position where the statutory requirements are satisfied.
- Related development appeals, building-certificate appeals, and an appeal against a development control order can be heard concurrently so that permissibility, environmental impacts, building status, and enforcement are resolved consistently.
Why It Matters
The decision illustrates the Land and Environment Court’s broad remedial powers in merits appeals. It could grant conditional development consent, direct the issue of building information certificates, and revoke an enforcement order rather than treating the Council’s refusals and demolition requirement as final.
For landowners and councils, the case also shows that applications seeking to retain unauthorized structures remain subject to ordinary planning scrutiny, including land-use permissibility, biodiversity, flooding, built form, site suitability, submissions, and the public interest. A successful appeal may preserve the structures, but their continuing use is governed by the approved applications and conditions of consent.