Ireland V Cessnock City Council [1999] NSWLEC 250

Ireland V Cessnock City Council [1999] NSWLEC 250

The building certificate appeal was allowed because the unchallenged evidence established that the building was structurally adequate and the Court found that the relevant consent and approval would probably have been granted if sought before construction or at the present time; the unlawful construction did not justify refusal where the Act permitted regularisation, punishment was for the criminal law, and the Applicants had not benefited from the wrongdoing. Development consent was granted because the proposed farm shed use was harmonious with the commercial vineyard use of the property, the building was compatible with the existing built environment, its environmental impact was low or...

Jurisdiction
Australia
Judgment Date
12 November 1999
Procedural Posture
Appeals Under the Environmental Planning and Assessment Act 1979 Against Refusal of a Building Certificate and Deemed Refusal of a Development Application / Merits Determination After Preliminary Questions of Law
Outcome
Appeals upheld and allowed; Council directed to issue a building certificate; development consent granted subject to conditions; no order as to costs.
Legal Topics
['building Certificate' 'development Consent' 'unlawful Building' 'rural Vineyards Zoning' 'farm Shed Use' 'planning Discretion']
['planning and Environment Law' 'development Control' 'building Regulation'] ['building Certificate' 'development Consent' 'unlawful Building' 'rural Vineyards Zoning' 'farm Shed Use' 'planning Discretion']

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Procedural Posture

Appeals Under the Environmental Planning and Assessment Act 1979 Against Refusal of a Building Certificate and Deemed Refusal of a Development Application / Merits Determination After Preliminary Questions of Law

Legal Issues

  1. 1 ['Whether a building certificate should be issued for a building erected unlawfully or contrary to approvals.' 'Whether the unlawful erection of the building should cause refusal of the building certificate despite evidence of structural adequacy and likely approvability.' 'Whether development consent should be granted for use of the building as a farm shed for motor vehicles, farm and winery equipment.' "Whether the building's design, siting and 45 metre setback were acceptable in its rural vineyards planning context."]

Ratio Decidendi

The building certificate appeal was allowed because the unchallenged evidence established that the building was structurally adequate and the Court found that the relevant consent and approval would probably have been granted if sought before construction or at the present time; the unlawful construction did not justify refusal where the Act permitted regularisation, punishment was for the criminal law, and the Applicants had not benefited from the wrongdoing. Development consent was granted because the proposed farm shed use was harmonious with the commercial vineyard use of the property, the building was compatible with the existing built environment, its environmental impact was low or...

Court Disposition

Appeals upheld and allowed; Council directed to issue a building certificate; development consent granted subject to conditions; no order as to costs.

Orders

  • ['In proceeding No 20033 of 1999, the appeal be upheld.' 'Pursuant to the Environmental Planning and Assessment Act 1979 s 149F(3) the Council is directed to issue a building certificate without imposing any terms or conditions.' 'In proceedings No 10170 of 1999, the appeal be allowed.' 'Development consent be...