Hornsby Shire Council v Trives (No 4) [2016] NSWLEC 28

Hornsby Shire Council v Trives (No 4) [2016] NSWLEC 28

Because the complying development certificates had been determined to be invalid and the relevant partially erected buildings in proceedings 14/40215 and 14/40259 were prohibited development, declaratory relief and demolition orders were appropriate; however, extended compliance periods were warranted to allow the landowners a reasonable opportunity to seek lawful consent to retain part of the structures. As the Council succeeded and no disentitling conduct was identified, the first respondent was also ordered to pay the Council's costs, including costs of the separate question, and the reasonable limited costs of the relevant landowner respondents who had taken a submitting or benign...

Jurisdiction
Australia
Judgment Date
24 March 2016
Procedural Posture
Class 4 Judicial Review Proceedings / Final Disposition After Determination of Separate Question as to Validity of Complying Development Certificates
Outcome
Declarations made that all three complying development certificates were invalid; demolition orders made in proceedings 14/40215 and 14/40259 with extended compliance periods; costs ordered against the first respondent.
Legal Topics
['judicial Review of Complying Development Certificates' 'validity of Complying Development Certificates Issued by Accredited Certifier' 'declaratory Relief' 'mandatory Demolition Orders' 'prohibited Development' 'costs Following the Event' 'submitting Appearance Basis']
['administrative Law' 'environmental Planning and Development' 'costs'] ['judicial Review of Complying Development Certificates' 'validity of Complying Development Certificates Issued by Accredited Certifier' 'declaratory Relief' 'mandatory Demolition Orders' 'prohibited Development' 'costs Following the Event' 'submitting Appearance Basis']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Final Disposition After Determination of Separate Question as to Validity of Complying Development Certificates

Legal Issues

  1. 1 ['Whether declaratory orders should be made that the complying development certificates issued by the first respondent were invalid and of no effect.' 'Whether mandatory demolition orders should be made for structures constructed pursuant to invalid complying development certificates.' 'Whether time for compliance with demolition orders should be extended to allow the landowners an opportunity to seek consent for retention of part of the structures.' "Whether the first respondent should pay the Council's costs, including costs of the separate question, and the costs of the second and third respondents in proceedings 14/40215 and 14/40259."]

Ratio Decidendi

Because the complying development certificates had been determined to be invalid and the relevant partially erected buildings in proceedings 14/40215 and 14/40259 were prohibited development, declaratory relief and demolition orders were appropriate; however, extended compliance periods were warranted to allow the landowners a reasonable opportunity to seek lawful consent to retain part of the structures. As the Council succeeded and no disentitling conduct was identified, the first respondent was also ordered to pay the Council's costs, including costs of the separate question, and the reasonable limited costs of the relevant landowner respondents who had taken a submitting or benign...

Court Disposition

Declarations made that all three complying development certificates were invalid; demolition orders made in proceedings 14/40215 and 14/40259 with extended compliance periods; costs ordered against the first respondent.

Orders

  • ['In proceeding 14/40215, declare that Complying Development Certificate No 14/6423 issued by the first respondent on 22 January 2014 for development on 14 Railway Parade, Hornsby was issued in breach of the Environmental Planning and Assessment Act 1979 (NSW) and is invalid and of no effect.' 'In proceeding...