Chapman v Warringah Council [2010] NSWLEC 1339

Chapman v Warringah Council [2010] NSWLEC 1339

The Court accepted the planning evidence that, assessed as a notional application, the unauthorised works had acceptable planning impacts, complied with or warranted variation from the relevant LEP 2000 controls, and would not result in material impacts in terms of bulk, overshadowing or view loss. Past unauthorised construction was not itself a reason to refuse the building certificate application. A 500mm additional privacy screen for 5.7 m was sufficient to provide acceptable privacy.

Jurisdiction
Australia
Judgment Date
21 October 2010
Procedural Posture
Appeal Against Refusal of a Building Certificate Application Under S 149 F of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Termination of S 34 Conciliation Conference; Directions Made Before Final Orders
Outcome
The Court was satisfied that a building certificate may be issued, subject to accurate plans and agreed Short Minutes of Order before final orders are issued in Chambers.
Legal Topics
['unauthorised Building Works' 'residential Amenity' 'development Consent Compliance' 'privacy Impacts' 'bulk, Overshadowing and View Loss' 'warringah Local Environmental Plan 2000 Controls']
['environmental Planning and Assessment' 'building Certificates' 'land and Environment'] ['unauthorised Building Works' 'residential Amenity' 'development Consent Compliance' 'privacy Impacts' 'bulk, Overshadowing and View Loss' 'warringah Local Environmental Plan 2000 Controls']

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Procedural Posture

Appeal Against Refusal of a Building Certificate Application Under S 149 F of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Termination of S 34 Conciliation Conference; Directions Made Before Final Orders

Legal Issues

  1. 1 ['Whether a building certificate should issue for unauthorised changes to floor levels, walls and roofs from the approved development consent.' 'Whether the unauthorised works should be assessed as a notional application on planning merits despite past unlawful conduct.' 'Whether the works caused unacceptable impacts on residential amenity, including bulk, overshadowing, view loss and privacy.' 'What extent of additional privacy screen along the northern boundary was required.']

Ratio Decidendi

The Court accepted the planning evidence that, assessed as a notional application, the unauthorised works had acceptable planning impacts, complied with or warranted variation from the relevant LEP 2000 controls, and would not result in material impacts in terms of bulk, overshadowing or view loss. Past unauthorised construction was not itself a reason to refuse the building certificate application. A 500mm additional privacy screen for 5.7 m was sufficient to provide acceptable privacy.

Court Disposition

The Court was satisfied that a building certificate may be issued, subject to accurate plans and agreed Short Minutes of Order before final orders are issued in Chambers.

Orders

  • ['Applicant is to serve building certificate plans and Short Minutes of Order within 7 days.' 'Parties are to file agreed Short Minutes of Order and plans within 7 days of the date of service of Direction 1.' 'Liberty to restore on 2 days notice.' 'Final orders are to be issued in Chambers upon receipt of agreed...