Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251

Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251

The Court had jurisdiction because the section 121B order was directed to the owner, identified the work to be removed, and sufficiently stated the circumstances of unlawful work. The applicant failed to prove that the green structure on the land was two registered caravans satisfying the relevant New South Wales Local Government regulations or that any regulation 77 exemption applied. In any event, any exemption from a section 68 approval under the Local Government Act 1993 did not displace the requirement for development consent under the Environmental Planning and Assessment Act 1979. Because the green structure or moveable dwelling was development or work for which no development...

Jurisdiction
Australia
Judgment Date
10 September 2010
Procedural Posture
Appeal Under Section 121 ZK of the Environmental Planning and Assessment Act 1979 Against an Order Under Section 121 B of That Act / Judgment After Hearing
Outcome
Appeal dismissed; council's section 121B order affirmed but varied to extend time for compliance.
Legal Topics
['section 121 B Order' 'unlawful Work' 'development Consent' 'moveable Dwelling' 'caravans' 'section 68 Approval' 'conditional Exemptions' 'jurisdiction to Hear Appeal']
['planning and Environment' 'local Government' 'land Use Regulation'] ['section 121 B Order' 'unlawful Work' 'development Consent' 'moveable Dwelling' 'caravans' 'section 68 Approval' 'conditional Exemptions' 'jurisdiction to Hear Appeal']

Case Brief

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Procedural Posture

Appeal Under Section 121 ZK of the Environmental Planning and Assessment Act 1979 Against an Order Under Section 121 B of That Act / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Court had jurisdiction to hear the appeal despite contentions about service, representations and the form of the order.' 'Whether the green structure was two registered caravans or a moveable dwelling.' 'Whether any exemption under the Local Government legislation removed the need for development consent under the Environmental Planning and Assessment Act 1979.' 'Whether the structures constituted unlawful work requiring removal under the section 121B order.']

Ratio Decidendi

The Court had jurisdiction because the section 121B order was directed to the owner, identified the work to be removed, and sufficiently stated the circumstances of unlawful work. The applicant failed to prove that the green structure on the land was two registered caravans satisfying the relevant New South Wales Local Government regulations or that any regulation 77 exemption applied. In any event, any exemption from a section 68 approval under the Local Government Act 1993 did not displace the requirement for development consent under the Environmental Planning and Assessment Act 1979. Because the green structure or moveable dwelling was development or work for which no development...

Court Disposition

Appeal dismissed; council's section 121B order affirmed but varied to extend time for compliance.

Orders

  • ['The appeal is dismissed.' "The council's order issued under s 121B of the Environmental Planning and Assessment Act 1979 and dated 11 January 2010 is affirmed but varied to allow the applicant 21 days from the date of this order in which to comply with the terms of this order." 'In the event that the applicant...