Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088

Felthouse & Anor v Ashfield Council [2010] NSWLEC 1088

Although substantial works were carried out without development consent, full reinstatement was not practicable and requiring replacement of the rear gable with a hipped roof was not warranted given the likely cost and work involved and the limited visibility of that section of roof from the public domain. The unauthorised works were structurally adequate or could be brought into Building Code of Australia compliance by the agreed works, so substituted orders were appropriate and the Council should issue a building certificate once satisfied that the agreed works and documents were completed.

Jurisdiction
Australia
Judgment Date
19 April 2010
Procedural Posture
Appeals Against Refusal to Issue a Building Certificate and Against Orders Issued Under S 121 B of the Environmental Planning and Assessment Act 1979 / Hearing After Termination of S 34 Conciliation Conference; Extempore Judgment
Outcome
Both appeals upheld. The Council's orders were substituted, and the Council was directed to issue a building certificate after completion of specified works and provision of specified documents unless it was not satisfied within three working days.
Legal Topics
['building Certificate' 'unauthorised Building Works' 'section 121 B Orders' 'heritage Item' 'building Code of Australia Compliance']
['planning and Environment' 'building Control' 'heritage Conservation'] ['building Certificate' 'unauthorised Building Works' 'section 121 B Orders' 'heritage Item' 'building Code of Australia Compliance']

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Procedural Posture

Appeals Against Refusal to Issue a Building Certificate and Against Orders Issued Under S 121 B of the Environmental Planning and Assessment Act 1979 / Hearing After Termination of S 34 Conciliation Conference; Extempore Judgment

Legal Issues

  1. 1 ["Whether the Council's orders requiring demolition, removal or reinstatement of unauthorised works should be revoked, modified or substituted." 'Whether reinstatement of the rear gable to a hipped roof should be required to address heritage impacts of unauthorised works.' 'Whether the Court should direct the Council to issue a building certificate once agreed works and documents were completed.']

Ratio Decidendi

Although substantial works were carried out without development consent, full reinstatement was not practicable and requiring replacement of the rear gable with a hipped roof was not warranted given the likely cost and work involved and the limited visibility of that section of roof from the public domain. The unauthorised works were structurally adequate or could be brought into Building Code of Australia compliance by the agreed works, so substituted orders were appropriate and the Council should issue a building certificate once satisfied that the agreed works and documents were completed.

Court Disposition

Both appeals upheld. The Council's orders were substituted, and the Council was directed to issue a building certificate after completion of specified works and provision of specified documents unless it was not satisfied within three working days.

Orders

  • ['In appeal 10934 of 2009, appeal upheld.' 'The orders issued by the Respondent Council pursuant to s 121B of the Environmental Planning and Assessment Act and both dated 17 November 2009 are substituted.' 'The Applicant shall, within 6 weeks, close the gap to less than 100 millimetres between the swimming pool...