Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34

Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34

Each complying development certificate was issued in breach of the Environmental Planning and Assessment Act 1979 (NSW) because the proposed secondary dwelling did not satisfy the development standards in Sch 1 to the ARH SEPP and it was not reasonably open to the certifier to conclude otherwise. The certifier failed to correctly address floor area and setback requirements, particularly the effect of the attached garage and the building height, and his decisions lacked evident and intelligible justification. The secondary dwelling as constructed also did not accord with any certificate. The two storey addition was constructed or adapted so as to be capable of separate occupation, creating...

Jurisdiction
Australia
Judgment Date
08 April 2016
Procedural Posture
Class 4 Judicial Review and Civil Enforcement Proceedings / Principal Judgment; Proceedings Stood Over for Final Orders
Outcome
The Court found breaches of the Environmental Planning and Assessment Act 1979 (NSW), indicated that declarations and remedial orders should be made, and stood the proceedings over for final orders.
Legal Topics
['validity of Complying Development Certificates' 'complying Development for Secondary Dwelling' 'state Environmental Planning Policy (affordable Rental Housing) 2009 (nsw)' 'unreasonableness in Administrative Decision Making' 'occupation Certificates' 'remedial Orders Under S 124 of the Environmental Planning and Assessment Act 1979 (nsw)']
['administrative Law' 'environmental Planning and Assessment' 'civil Enforcement' 'judicial Review'] ['validity of Complying Development Certificates' 'complying Development for Secondary Dwelling' 'state Environmental Planning Policy (affordable Rental Housing) 2009 (nsw)' 'unreasonableness in Administrative Decision Making' 'occupation Certificates' 'remedial Orders Under S 124 of the Environmental Planning and Assessment Act 1979 (nsw)']

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Procedural Posture

Class 4 Judicial Review and Civil Enforcement Proceedings / Principal Judgment; Proceedings Stood Over for Final Orders

Legal Issues

  1. 1 ['Whether the complying development certificates issued by an accredited certifier for the secondary dwelling were valid under ss 76A and 85A of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether it was reasonably open to the accredited certifier to conclude that the proposed secondary dwelling complied with the development standards in Sch 1 to State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW).' 'Whether the secondary dwelling was constructed in accordance with any complying development certificate.' 'Whether the two storey addition to the existing dwelling was constructed or adapted so as to be capable of use as a separate dwelling, resulting in prohibited development.' 'Whether the interim occupation certificates were validly issued.' 'Whether declaratory and remedial orders should be made under s 124 of the Environmental Planning and Assessment Act 1979 (NSW).']

Ratio Decidendi

Each complying development certificate was issued in breach of the Environmental Planning and Assessment Act 1979 (NSW) because the proposed secondary dwelling did not satisfy the development standards in Sch 1 to the ARH SEPP and it was not reasonably open to the certifier to conclude otherwise. The certifier failed to correctly address floor area and setback requirements, particularly the effect of the attached garage and the building height, and his decisions lacked evident and intelligible justification. The secondary dwelling as constructed also did not accord with any certificate. The two storey addition was constructed or adapted so as to be capable of separate occupation, creating...

Court Disposition

The Court found breaches of the Environmental Planning and Assessment Act 1979 (NSW), indicated that declarations and remedial orders should be made, and stood the proceedings over for final orders.

Orders

  • ['Direct the parties to bring in agreed, or in the absence of agreement, competing short minutes of orders reflecting my reasons for judgment.' 'Stand over proceedings to 9.00am on Thursday 21 April 2016 for the purpose of making final orders.' 'Direct that by 4.00pm on 20 April 2016 the parties provide to my...