Hornsby Shire Council v Trives [2014] NSWLEC 171

Hornsby Shire Council v Trives [2014] NSWLEC 171

The proposed structures described as 'detached studios' are, in fact, self-contained accommodations capable of separate use as dwellings and therefore are not ancillary to the existing dwellings. They do not fall within the definition of 'detached studio' under the SEPP and are not permitted in the R2 Zone under the Hornsby LEP. Consequently, the complying development certificates were not validly issued.

Jurisdiction
Australia
Judgment Date
20 October 2014
Procedural Posture
Judicial Review / Determination of Separate Question
Outcome
Separate questions answered in the negative; costs to be paid by First Respondent; proceedings stood over for further directions.
Legal Topics
['validity of Complying Development Certificates' 'characterisation of Development' 'meaning of Ancillary Development' 'permissibility of Development Under Local Environmental Plan']
['administrative Law' 'planning Law'] ['validity of Complying Development Certificates' 'characterisation of Development' 'meaning of Ancillary Development' 'permissibility of Development Under Local Environmental Plan']

Case Brief

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Procedural Posture

Judicial Review / Determination of Separate Question

Legal Issues

  1. 1 ['Whether the complying development certificates issued for the proposed detached studio structures were validly issued under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' "Whether the proposed development is properly characterised as 'detached studio', 'dual occupancy', or 'secondary dwelling'." 'Whether such development is permissible in the R2 Low Density Residential zone under the Hornsby Local Environmental Plan 2013.' 'Whether the proposed structures are ancillary to the principal dwelling houses.']

Ratio Decidendi

The proposed structures described as 'detached studios' are, in fact, self-contained accommodations capable of separate use as dwellings and therefore are not ancillary to the existing dwellings. They do not fall within the definition of 'detached studio' under the SEPP and are not permitted in the R2 Zone under the Hornsby LEP. Consequently, the complying development certificates were not validly issued.

Court Disposition

Separate questions answered in the negative; costs to be paid by First Respondent; proceedings stood over for further directions.

Orders

  • ['The separate questions posed for determination on 21 August 2014 be answered in the manner indicated in [32].' 'The proceedings be stood over for further directions to Friday 14 November 2014.' "The First Respondent must pay the Applicant's costs of and associated with the determination of the separate questions."]