Buckley and Love v Lake Macquarie City Council [2012] NSWLEC 1198

Buckley and Love v Lake Macquarie City Council [2012] NSWLEC 1198

The appeal with respect to the BBQ/pergola structure was dismissed because the SEPP 1 Objection was not made out: strict compliance with the Foreshore Building Line development standard remains relevant and necessary given the planning objectives, visual amenity expectations, and lack of consistent evidence for policy abandonment. The structure's excessive scale and intrusion below the Foreshore Building Line is not justified under the applicable statutory and planning controls. However, the appeal in relation to the garage extension was upheld in part, as Council agreed to its retention and issuance of a Building Certificate.

Parties
Applicants: Peter Maurice Buckley and Felicity Rose Love; Respondent: Lake Macquarie City Council
Jurisdiction
Australia
Judgment Date
25 July 2012
Procedural Posture
Appeal / Judgment
Outcome
The appeal (No 11233 of 2011) is dismissed with respect to the BBQ/pergola structure; the demolition order is confirmed. The appeal (No 10245 of 2012) is upheld in part with respect to the garage extension, and a Building Certificate is to be issued for the garage extension.
Legal Topics
Building Certificate, Foreshore Building Line, Demolition Order, Development Control Plan, Local Environmental Plan
Planning and Environment Law Building Certificate Foreshore Building Line Demolition Order Development Control Plan Local Environmental Plan

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Parties

Peter Maurice Buckley and Felicity Rose Love

Applicants

Lake Macquarie City Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the BBQ/pergola structure infringes the Foreshore Building Line under cl 22 of the Lake Macquarie Local Environmental Plan 2004
  2. 2 Whether a SEPP 1 Objection to the development standard is justified
  3. 3 Whether the Council's refusal to issue a Building Certificate for the garage/boatshed was lawful

Ratio Decidendi

The appeal with respect to the BBQ/pergola structure was dismissed because the SEPP 1 Objection was not made out: strict compliance with the Foreshore Building Line development standard remains relevant and necessary given the planning objectives, visual amenity expectations, and lack of consistent evidence for policy abandonment. The structure's excessive scale and intrusion below the Foreshore Building Line is not justified under the applicable statutory and planning controls. However, the appeal in relation to the garage extension was upheld in part, as Council agreed to its retention and issuance of a Building Certificate.

Court Disposition

The appeal (No 11233 of 2011) is dismissed with respect to the BBQ/pergola structure; the demolition order is confirmed. The appeal (No 10245 of 2012) is upheld in part with respect to the garage extension, and a Building Certificate is to be issued for the garage extension.

Orders

  • The appeal is dismissed regarding the BBQ/pergola structure.
  • The s 121B order 260/2011 for the demolition of the BBQ/pergola structure (excluding pavers) is confirmed, with 90 days to comply.