Clearihan & Anor v Cooma-Monaro Shire Council [2013] NSWLEC 1120

Clearihan & Anor v Cooma-Monaro Shire Council [2013] NSWLEC 1120

The storage structure was not exempt development because it exceeded the maximum permitted area, comprised more than one shipping container, and had not been constructed in accordance with the structural engineering design. The Court had no discretion to vary the development standards in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; development either meets those controls and is exempt or requires consent. Because development consent was required and there was no evidence that the structure was structurally adequate, complied or could be made to comply with the Building Code of Australia, or could be modified to comply with the engineer's design, it...

Jurisdiction
Australia
Judgment Date
08 July 2013
Procedural Posture
Class 1 Appeal Against Order No 2 Requiring Removal of a Storage Structure / Principal Judgment After Hearing
Outcome
Appeal dismissed
Legal Topics
['exempt Development' 'farm Buildings and Structures' 'council Orders' 'shipping Containers' 'structural Adequacy' 'development Consent']
['environmental Planning and Assessment' 'land and Environment Court Proceedings' 'development Control'] ['exempt Development' 'farm Buildings and Structures' 'council Orders' 'shipping Containers' 'structural Adequacy' 'development Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Against Order No 2 Requiring Removal of a Storage Structure / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the storage structure was exempt development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' "Whether the Court should revoke, modify or otherwise alter the council's Order requiring removal of the storage structure." 'Whether allowing the appeal was in the public interest.']

Ratio Decidendi

The storage structure was not exempt development because it exceeded the maximum permitted area, comprised more than one shipping container, and had not been constructed in accordance with the structural engineering design. The Court had no discretion to vary the development standards in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; development either meets those controls and is exempt or requires consent. Because development consent was required and there was no evidence that the structure was structurally adequate, complied or could be made to comply with the Building Code of Australia, or could be modified to comply with the engineer's design, it...

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'The Orders made by Cooma-Monaro Shire Council on 22 February 2013 that require the removal of the storage structure erected at Lot C DP 334335 Monaro Highway within 28 days are confirmed.' 'The exhibits, other than exhibits A, E and 2 may be returned.']