Napoli v Byron Shire Council [2020] NSWLEC 1646

Napoli v Byron Shire Council [2020] NSWLEC 1646

The Order was revoked because the fence as erected had been constructed in accordance with the approved Construction Certificate plans, those plans formed part of the relevant development consent under s 4.16(12), the evidence of the certifier was unchallenged, the Council did not contest the validity of the Construction Certificate, and the Court accepted that the structure would comply with the Swimming Pools Regulation 2018 and was consistent with what Council had approved.

Jurisdiction
Australia
Judgment Date
15 December 2020
Procedural Posture
Class 1 Appeal Against Development Control Order / Final Judgment and Orders
Outcome
Appeal upheld; Development Control Order 11 revoked; exhibits returned.
Legal Topics
['development Control Order' 'construction Certificate' 'privacy Screen/fence' 'swimming Pool Fencing' 'development Consent Compliance']
['planning and Environment' 'development Control' 'building Regulation'] ['development Control Order' 'construction Certificate' 'privacy Screen/fence' 'swimming Pool Fencing' 'development Consent Compliance']

Case Brief

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Procedural Posture

Class 1 Appeal Against Development Control Order / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether Development Control Order 11 should be revoked.' 'Whether the privacy screen/fence was constructed in accordance with the approved construction certificate plans and development consent.' 'Whether the structure needed to be relocated 900mm from the boundary to comply with swimming pool fencing requirements.' 'Whether the number of slats complied with the modified consent and construction certificate plans.']

Ratio Decidendi

The Order was revoked because the fence as erected had been constructed in accordance with the approved Construction Certificate plans, those plans formed part of the relevant development consent under s 4.16(12), the evidence of the certifier was unchallenged, the Council did not contest the validity of the Construction Certificate, and the Court accepted that the structure would comply with the Swimming Pools Regulation 2018 and was consistent with what Council had approved.

Court Disposition

Appeal upheld; Development Control Order 11 revoked; exhibits returned.

Orders

  • ['The appeal is upheld.' 'Development Control Order 11 dated 7 April 2020 in relation to premises at Lot 20 Sec 9 DP 11632, No. 42 Brandon Street, Suffolk Park and issued pursuant to the provisions of s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 is revoked.' 'The exhibits are returned.']