Tan v Canterbury-Bankstown Council [2019] NSWLEC 1451

Tan v Canterbury-Bankstown Council [2019] NSWLEC 1451

The shed and carport were not authorised by the complying development certificate or as exempt development because they were built without the required setbacks, so planning approval was required and was not obtained. The statutory basis for a development control order was therefore met. Because the agreed modified order required demolition of the unauthorised shed and partial demolition and alteration of the carport so it would comply with relevant development standards and the Building Code of Australia, it was appropriate to modify the order under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
20 September 2019
Procedural Posture
Class 1 Appeal Against a Development Control Order / Decision on Appeal; Parties Agreed to a Modified Development Control Order
Outcome
The appeal was upheld and the development control order was modified in accordance with Annexure A. Each party was ordered to pay its own costs.
Legal Topics
['development Control Order' 'demolition of Unauthorised Structures' 'carport and Shed' 'exempt and Complying Development' 'modification of Order by Consent']
['environmental Planning and Assessment' 'land and Environment'] ['development Control Order' 'demolition of Unauthorised Structures' 'carport and Shed' 'exempt and Complying Development' 'modification of Order by Consent']

Case Brief

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Procedural Posture

Class 1 Appeal Against a Development Control Order / Decision on Appeal; Parties Agreed to a Modified Development Control Order

Legal Issues

  1. 1 ['Whether the carport and shed required planning approval and were erected without approval' 'Whether the requirements for a Demolish Works Order under Item 3 of Part 1 of Schedule 5 to the Environmental Planning and Assessment Act 1979 were met' 'Whether the Court should modify the development control order in the terms agreed by the parties' 'Whether the modified order appropriately required demolition of the shed and alteration of the carport to comply with relevant development standards']

Ratio Decidendi

The shed and carport were not authorised by the complying development certificate or as exempt development because they were built without the required setbacks, so planning approval was required and was not obtained. The statutory basis for a development control order was therefore met. Because the agreed modified order required demolition of the unauthorised shed and partial demolition and alteration of the carport so it would comply with relevant development standards and the Building Code of Australia, it was appropriate to modify the order under s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979.

Court Disposition

The appeal was upheld and the development control order was modified in accordance with Annexure A. Each party was ordered to pay its own costs.

Orders

  • ['The appeal is upheld.' 'The development control order issued by the Respondent to the Applicant dated 24 April 2019 is, pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, modified in accordance with the development control order at Annexure A.' 'Each party shall pay its own costs...