Bathurst Regional Council v Taylor [2012] NSWLEC 226

Bathurst Regional Council v Taylor [2012] NSWLEC 226

Clause 28 of the Bathurst Regional (Interim) Local Environmental Plan 2005 did not apply merely to an application to use an existing building as a dwelling-house, and the commissioner had considered the policy inherent in cl 28. However, the consent conditions required rectification and structural works to the building, which constituted erection of a building within s 4(2)(b) of the Environmental Planning and Assessment Act 1979 and thereby invoked the mandatory prohibition in cl 28. Because the land was less than 100ha and did not satisfy cl 28, there was no power to grant development consent. The building certificate decision was also set aside because it depended on the consent to use...

Jurisdiction
Australia
Judgment Date
04 October 2012
Procedural Posture
Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 Limited to a Question of Law / Appeal From the Judgment and Orders of Commissioner Fakes Made on 25 May 2012 in Taylor V Bathurst Regional Council [2012] NSWLEC 1140
Outcome
Appeal allowed; the judgment and orders of the commissioner made on 25 May 2012 were set aside; costs reserved.
Legal Topics
['construction of Planning Instrument' 'dwelling Houses in Rural Zones' 'mandatory Considerations' 'conditions of Development Consent' 'question of Law Appeal']
['planning and Environment Law' 'development Consent' 'building Certificates'] ['construction of Planning Instrument' 'dwelling Houses in Rural Zones' 'mandatory Considerations' 'conditions of Development Consent' 'question of Law Appeal']

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Procedural Posture

Class 1 Appeal Under S 56 a of the Land and Environment Court Act 1979 Limited to a Question of Law / Appeal From the Judgment and Orders of Commissioner Fakes Made on 25 May 2012 in Taylor V Bathurst Regional Council [2012] NSWLEC 1140

Legal Issues

  1. 1 ['Whether cl 28 of the Bathurst Regional (Interim) Local Environmental Plan 2005 applied to a development application to use an existing building as a dwelling-house.' 'Whether the commissioner failed to take into account the policy inherent in cl 28 when considering the development application.' 'Whether conditions requiring building or rectification works engaged cl 28 so that the commissioner had no power to grant development consent.' 'Whether the building certificate decision should be set aside if the development consent decision was set aside.']

Ratio Decidendi

Clause 28 of the Bathurst Regional (Interim) Local Environmental Plan 2005 did not apply merely to an application to use an existing building as a dwelling-house, and the commissioner had considered the policy inherent in cl 28. However, the consent conditions required rectification and structural works to the building, which constituted erection of a building within s 4(2)(b) of the Environmental Planning and Assessment Act 1979 and thereby invoked the mandatory prohibition in cl 28. Because the land was less than 100ha and did not satisfy cl 28, there was no power to grant development consent. The building certificate decision was also set aside because it depended on the consent to use...

Court Disposition

Appeal allowed; the judgment and orders of the commissioner made on 25 May 2012 were set aside; costs reserved.

Orders

  • ['No 10052 of 2012: The appeal is allowed.' 'No 10052 of 2012: The judgment and orders of the commissioner made on 25 May 2012 are set aside.' 'No 10052 of 2012: The question of costs is reserved.' 'No 10052 of 2012: The exhibit may be returned.' 'No 10053 of 2012: The appeal is allowed.' 'No 10053 of 2012: The...