Jian San Wei v Willoughby City Council [2018] NSWLEC 1009

Jian San Wei v Willoughby City Council [2018] NSWLEC 1009

The concrete works in the front setback did not satisfy the SEPP standards for exempt development, were not approved by the complying development certificate or the final occupation certificate, and were not subject to any other development consent or approval. They were therefore development undertaken without...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
11 January 2018
Procedural Posture
Class 1 Appeal Against an Order Under S 121 B of the Environmental Planning and Assessment Act 1979 / Final Judgment After Termination of S 34 Conciliation Conference
Outcome
The appeal was upheld; the Council's order was confirmed subject to extension of the time for compliance to Wednesday 28 February 2018.
Legal Topics
['appeal Against Development Control Order' 'unauthorised Development' 'exempt and Complying Development' 'driveway and Hard Stand Space' 'front Setback Landscaping' 'stormwater Runoff']
['planning and Environmental Law' 'local Government' 'land and Environment Court Procedure'] ['appeal Against Development Control Order' 'unauthorised Development' 'exempt and Complying Development' 'driveway and Hard Stand Space' 'front Setback Landscaping' 'stormwater Runoff']

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Procedural Posture

Class 1 Appeal Against an Order Under S 121 B of the Environmental Planning and Assessment Act 1979 / Final Judgment After Termination of S 34 Conciliation Conference

Legal Issues

  1. 1 ['Whether the concrete works within the front setback were exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' 'Whether the concrete works were complying development under the relevant complying development certificate.' 'Whether the concrete works were subject to any other lawful development consent or approval.' "Whether the order should be modified to reflect the Applicant's proposed amended landscape plan." 'Whether the time for compliance with the order should be modified.']

Ratio Decidendi

The concrete works in the front setback did not satisfy the SEPP standards for exempt development, were not approved by the complying development certificate or the final occupation certificate, and were not subject to any other development consent or approval. They were therefore development undertaken without consent where consent was required. The Applicant's amended landscape plan was not an acceptable basis to modify the substantive requirements of the order, but the compliance date should be extended because the original compliance period had passed.

Court Disposition

The appeal was upheld; the Council's order was confirmed subject to extension of the time for compliance to Wednesday 28 February 2018.

Orders

  • ['The appeal is upheld.' "Order 1295, issued by Willoughby City Council to the Applicant under s.121B of the Environmental Planning and Assessment Act, 1979 requiring the demolition and removal of concrete works within the front setback of the Applicant's property (18 Harden Avenue, Northbridge) is confirmed,...