Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270

Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270

The DA was refused because, although framed as minor building works to replace walls and roof elements required to be retained under the CDC, the previously existing walls, roof and footings on which the CDC depended had been demolished and the proposed works were substantial components of a residential development. The Court held that a purpose had to be ascribed to the DA works and that the CDC, DA and BIC works had to be considered as aspects of the whole development. In those circumstances the Applicant should have sought full development consent for a residential dwelling and attached secondary dwelling, enabling assessment under the applicable planning controls including LLEP2013,...

Jurisdiction
Australia
Judgment Date
08 June 2021
Procedural Posture
Class 1 Environmental Planning Appeals Against Deemed Refusals of Development Application Da/2020/0429 and a Building Information Certificate Application / Final Determination After Concurrent Hearing
Outcome
Both appeals dismissed; Development Application DA/2020/0429 refused; Building Information Certificate dated 10 January 2020 refused.
Legal Topics
['development Application' 'complying Development Certificate' 'building Information Certificate' 'alterations and Additions' 'residential Use' 'purpose of Development' 'state Environmental Planning Policy No 55—remediation of Land' 'development Standards' 'public Interest' 'orderly Development']
['environmental Planning and Development' 'land and Environment' 'building Certification'] ['development Application' 'complying Development Certificate' 'building Information Certificate' 'alterations and Additions' 'residential Use' 'purpose of Development' 'state Environmental Planning Policy No 55—remediation of Land' 'development Standards' 'public Interest' 'orderly Development']

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Procedural Posture

Class 1 Environmental Planning Appeals Against Deemed Refusals of Development Application Da/2020/0429 and a Building Information Certificate Application / Final Determination After Concurrent Hearing

Legal Issues

  1. 1 ['Whether consent should be granted for a development application framed as minor building works to construct part walls and part roof connected with an existing complying development certificate after the previously existing buildings, roof and footings had been demolished.' 'Whether a purpose must be ascribed to the proposed DA works so that permissibility and applicable planning controls can be identified.' 'Whether the DA could be assessed as minor building works relying on the CDC, or required assessment by reference to the whole resulting residential development and applicable controls including LLEP2013, LDCP2013 and SEPP 55.' 'Whether granting consent in the circumstances would be consistent with the public interest and orderly development.' 'Whether a Building Information Certificate should issue for concrete piers and a waffle pod slab where the related DA was refused and contamination information was lacking.']

Ratio Decidendi

The DA was refused because, although framed as minor building works to replace walls and roof elements required to be retained under the CDC, the previously existing walls, roof and footings on which the CDC depended had been demolished and the proposed works were substantial components of a residential development. The Court held that a purpose had to be ascribed to the DA works and that the CDC, DA and BIC works had to be considered as aspects of the whole development. In those circumstances the Applicant should have sought full development consent for a residential dwelling and attached secondary dwelling, enabling assessment under the applicable planning controls including LLEP2013,...

Court Disposition

Both appeals dismissed; Development Application DA/2020/0429 refused; Building Information Certificate dated 10 January 2020 refused.

Orders

  • ['Proceedings 2020/226535: The appeal is dismissed.' 'Proceedings 2020/226535: Development Application DA/2020/0429 is refused.' 'Proceedings 2020/226535: The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.' 'Proceedings 2020/226536: The appeal is dismissed.' 'Proceedings...