Nesseim v Ku-ring-gai Council [2024] NSWLEC 1440

Nesseim v Ku-ring-gai Council [2024] NSWLEC 1440

The stairs and associated works were not constructed in accordance with the complying development certificate or relevant exempt development standards, and the law allows for a compliance order to be issued, requiring corrective works. The Court is satisfied it has statutory power to substitute the original order for a compliance order by consent under the Environmental Planning and Assessment Act 1979 and Land and Environment Court Act 1979.

Jurisdiction
Australia
Judgment Date
26 July 2024
Procedural Posture
Appeal (class 1) / Final Determination Post Conciliation Conference
Outcome
Appeal upheld and original development control order substituted with a compliance order on agreed terms.
Legal Topics
['development Control Orders' 'complying Development Certificate' 'appeals Against Orders' 'unlawfully Erected Buildings' 'compliance Order' 'conciliation Conference']
['planning and Environment Law'] ['development Control Orders' 'complying Development Certificate' 'appeals Against Orders' 'unlawfully Erected Buildings' 'compliance Order' 'conciliation Conference']

Case Brief

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Procedural Posture

Appeal (class 1) / Final Determination Post Conciliation Conference

Legal Issues

  1. 1 ['Whether stairs and structures were constructed in accordance with the complying development certificate and relevant development standards' 'Whether the original demolish works order should be upheld or substituted by a compliance order' 'Whether the Court may make orders by consent substituting the order under Environmental Planning and Assessment Act 1979 and Land and Environment Court Act 1979']

Ratio Decidendi

The stairs and associated works were not constructed in accordance with the complying development certificate or relevant exempt development standards, and the law allows for a compliance order to be issued, requiring corrective works. The Court is satisfied it has statutory power to substitute the original order for a compliance order by consent under the Environmental Planning and Assessment Act 1979 and Land and Environment Court Act 1979.

Court Disposition

Appeal upheld and original development control order substituted with a compliance order on agreed terms.

Orders

  • ['The appeal is upheld.' 'The Respondent\'s Development Control Order dated 27 April 2023 is substituted in accordance with s.8.18(4)(c) and (f) of the Environmental Planning and Assessment Act 1979 in the terms set out in the order annexed and marked "A".']