Gooley v Canada Bay City Council [2006] NSWLEC 636

Gooley v Canada Bay City Council [2006] NSWLEC 636

The approved development consent plans did not approve rooftop light poles extending above the balustrade level; the approximately 5 m light poles formed part of the building and were unauthorised. Because Council was entitled to and intended to take action for their removal or alteration, the certificates should issue only after the light poles are removed or lowered to no higher than the balustrade and the illumination is certified as satisfying AS4282.

Jurisdiction
Australia
Judgment Date
11 October 2006
Procedural Posture
Appeals Against Deemed Refusal to Issue a Building Certificate and an Occupation Certificate / Judgment After on Site Hearing
Outcome
Both appeals upheld, with certificates to issue subject to removal or lowering of the light poles and AS4282 compliance.
Legal Topics
['building Certificate Refusal' 'occupation Certificate Refusal' 'interpretation of Development Consent' 'rooftop Lighting Structures' 'as4282 Compliance']
['environmental Planning and Assessment' 'development Consent' 'building and Occupation Certification'] ['building Certificate Refusal' 'occupation Certificate Refusal' 'interpretation of Development Consent' 'rooftop Lighting Structures' 'as4282 Compliance']

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Procedural Posture

Appeals Against Deemed Refusal to Issue a Building Certificate and an Occupation Certificate / Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether the existing rooftop light poles formed part of the development consent for the dwelling at 357 Victoria Place, Drummoyne.' 'Whether the Building Certificate should be issued despite the rooftop lighting poles.' 'Whether the Occupation Certificate should be issued for the property despite the rooftop lighting poles.' 'Whether the rooftop lighting satisfied the requirements of AS4282.']

Ratio Decidendi

The approved development consent plans did not approve rooftop light poles extending above the balustrade level; the approximately 5 m light poles formed part of the building and were unauthorised. Because Council was entitled to and intended to take action for their removal or alteration, the certificates should issue only after the light poles are removed or lowered to no higher than the balustrade and the illumination is certified as satisfying AS4282.

Court Disposition

Both appeals upheld, with certificates to issue subject to removal or lowering of the light poles and AS4282 compliance.

Orders

  • ['Appeal No. 10543 of 2005: The appeal is upheld.' 'Appeal No. 10543 of 2005: The Court orders the council to issue the Building Certificate for this property, subject to the light poles being removed or lowered to a height not exceeding the balustrade height and the illumination satisfying the requirements of...