Xu v Chen [2023] NSWLEC 46

Xu v Chen [2023] NSWLEC 46

The CDC issued by the Second Respondent to the First Respondent was invalid due to non-compliance with side setback standards limiting the length of the wall within 900 mm of the boundary, and because required neighbour notification was not given. Consequent modifications to the invalid CDC were also invalid. Declarations of invalidity and consequential restraining and demolition orders were warranted. Costs were ordered against the First Respondent on an indemnity basis from the commencement of proceedings and jointly against both Respondents for earlier costs.

Parties
Applicant: Hui Xu; First Respondent: Qijing Chen; Second Respondent: Rupu Gong
Jurisdiction
Australia
Judgment Date
18 April 2023
Procedural Posture
Civil Enforcement / Final Judgment
Outcome
Applicant's summons allowed; CDC and modified CDC declared invalid; consequential and cost orders made.
Legal Topics
Invalidity of Complying Development Certificate, Side Setback Requirements, Modification of Invalid Approvals, Costs Indemnity and Ordinary Basis, Statutory Interpretation
Planning Law Environmental Law Invalidity of Complying Development Certificate Side Setback Requirements Modification of Invalid Approvals Costs Indemnity and Ordinary Basis Statutory Interpretation

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Parties

Hui Xu

Applicant

Qijing Chen

First Respondent

Rupu Gong

Second Respondent

Procedural Posture

Civil Enforcement / Final Judgment

Legal Issues

  1. 1 Whether the complying development certificate (CDC) is invalid for non-compliance with side setback requirements and lack of proper notification to neighbours
  2. 2 Whether a certificate found invalid can be validly modified
  3. 3 Appropriate orders and declarations in respect of invalid CDC

Ratio Decidendi

The CDC issued by the Second Respondent to the First Respondent was invalid due to non-compliance with side setback standards limiting the length of the wall within 900 mm of the boundary, and because required neighbour notification was not given. Consequent modifications to the invalid CDC were also invalid. Declarations of invalidity and consequential restraining and demolition orders were warranted. Costs were ordered against the First Respondent on an indemnity basis from the commencement of proceedings and jointly against both Respondents for earlier costs.

Court Disposition

Applicant's summons allowed; CDC and modified CDC declared invalid; consequential and cost orders made.

Orders

  • Declaration that CDC-102325 granted on 22 August 2022 for 17 Princess Street, Rose Bay is invalid.
  • Declaration that modification CDC-121869 for 17 Princess Street, Rose Bay is invalid.