Kells v Auburn Council [2006] NSWLEC 439

Kells v Auburn Council [2006] NSWLEC 439

The appeal was dismissed because issuing a building certificate for the unauthorised structure would be contrary to the intentions of the Auburn Local Environmental Plan 2000 and the relevant Development Control Plan concerning character, streetscape and amenity, and therefore would not be in the public interest. The structure was found to be an awkward building form that did not relate well to the existing building or locality and detracted from the rear laneway streetscape; parking impacts also meant the currently approved motor repair station use could not comply if the building remained.

Jurisdiction
Australia
Judgment Date
08 November 2006
Procedural Posture
Appeal Against Refusal to Issue a Building Certificate / Hearing Before Commissioner; Judgment on Appeal
Outcome
Appeal dismissed.
Legal Topics
['building Certificate' 'unauthorised Building Works' 'building Code of Australia Compliance' 'fire Resisting Construction' 'stormwater Management' 'character, Streetscape and Amenity' 'parking and Access' 'public Interest']
['planning and Environment' 'building Regulation' 'local Government'] ['building Certificate' 'unauthorised Building Works' 'building Code of Australia Compliance' 'fire Resisting Construction' 'stormwater Management' 'character, Streetscape and Amenity' 'parking and Access' 'public Interest']

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Procedural Posture

Appeal Against Refusal to Issue a Building Certificate / Hearing Before Commissioner; Judgment on Appeal

Legal Issues

  1. 1 ['Whether a building certificate should issue for an unauthorised two level structure erected at the rear of No. 8 Alban Street, Lidcombe.' 'Whether non-compliance with the Building Code of Australia fire resisting construction requirements could be addressed.' 'Whether insufficient stormwater management and runoff information prevented assessment under Auburn Local Environmental Plan 2000 and the Stormwater Drainage Development Control Plan.' 'Whether the development was inconsistent with character, streetscape and amenity provisions of Auburn Local Environmental Plan 2000 and the Industrial Areas Development Control Plan.' 'Whether the development provided inadequate parking and access and was inconsistent with relevant development control plan provisions.' 'Whether the carrying out of development without first obtaining development consent and the circumstances of the case made issue of a building certificate contrary to the public interest.']

Ratio Decidendi

The appeal was dismissed because issuing a building certificate for the unauthorised structure would be contrary to the intentions of the Auburn Local Environmental Plan 2000 and the relevant Development Control Plan concerning character, streetscape and amenity, and therefore would not be in the public interest. The structure was found to be an awkward building form that did not relate well to the existing building or locality and detracted from the rear laneway streetscape; parking impacts also meant the currently approved motor repair station use could not comply if the building remained.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The exhibits are returned to the parties except Exhibits 2, 9, 10, 11 and A.']