Wilkie v Blacktown City Council [2015] NSWLEC 1084

Wilkie v Blacktown City Council [2015] NSWLEC 1084

The Court preferred Mr Ransley's evidence to Mr Whitehouse's. The consistent moisture readings over the old and new slabs and at different wall elevations, the 31 May 2011 Certificate of Compliance stating that the underlay membrane to the whole existing building complied with AS 2870-1996 and the BCA, and the Special Purpose Building Report stating that damp course appeared to be installed in accordance with the Building Code of Australia provided sufficient support for the conclusion that a deferred commencement condition requiring a topping slab was not warranted. The council's scepticism about the new slab did not outweigh that evidence. The appeal was therefore upheld and DA-14-715...

Jurisdiction
Australia
Judgment Date
26 March 2015
Procedural Posture
Class 1 Appeal Concerning DA 14 715 to Use an Existing Structure for a Dwelling House / Final Judgment After Mandatory Conciliation and Arbitration Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement
Outcome
Appeal upheld; development application approved subject to conditions in Annexure A.
Legal Topics
['use of Existing Structure as Dwelling House' 'damp Proofing for Human Habitation' 'deferred Commencement Conditions' 'building Code of Australia Compliance' 'rural Zone Dwelling Development Standard']
['planning and Environment' 'development Consent' 'building Regulation'] ['use of Existing Structure as Dwelling House' 'damp Proofing for Human Habitation' 'deferred Commencement Conditions' 'building Code of Australia Compliance' 'rural Zone Dwelling Development Standard']

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Procedural Posture

Class 1 Appeal Concerning DA 14 715 to Use an Existing Structure for a Dwelling House / Final Judgment After Mandatory Conciliation and Arbitration Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement

Legal Issues

  1. 1 ['Whether adequate evidence showed sufficient damp proofing under the slab to allow the structure to be used for human habitation.' 'Whether a deferred commencement condition was required to ensure appropriate treatment of the slab to prevent moisture entering the proposed dwelling.' 'Whether compliance with the development standard in cl 12(3) of Blacktown Local Environmental Plan 1988 was unreasonable and unnecessary in the circumstances.']

Ratio Decidendi

The Court preferred Mr Ransley's evidence to Mr Whitehouse's. The consistent moisture readings over the old and new slabs and at different wall elevations, the 31 May 2011 Certificate of Compliance stating that the underlay membrane to the whole existing building complied with AS 2870-1996 and the BCA, and the Special Purpose Building Report stating that damp course appeared to be installed in accordance with the Building Code of Australia provided sufficient support for the conclusion that a deferred commencement condition requiring a topping slab was not warranted. The council's scepticism about the new slab did not outweigh that evidence. The appeal was therefore upheld and DA-14-715...

Court Disposition

Appeal upheld; development application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'DA-14-715 to use an existing structure for a dwelling house at 106 Robert Street, Riverstone is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of exhibits 2, A and C.']