Lismore City Council v Dajoco Investments Pty Ltd [2021] NSWLEC 59

Lismore City Council v Dajoco Investments Pty Ltd [2021] NSWLEC 59

The deck was not exempt development because its roof exceeded the height standard in cl 2.12(1)(j1) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, but the Court declined discretionary relief for the deck because no substantive purpose would be served by requiring a Building Information Certificate. The Council failed to establish that installation of the stove required development consent. Mr Coyne's residential occupation was, as a matter of fact and degree, a separate and independent use as residential accommodation and not merely ancillary caretaker use; because residential accommodation was prohibited in the B1 zone, orders restraining...

Jurisdiction
Australia
Judgment Date
09 June 2021
Procedural Posture
Class 4 Civil Enforcement Proceedings Under S 9.45 of the Environmental Planning and Assessment Act 1979 / Principal Judgment on Amended Summons
Outcome
Orders made restraining residential use of the property, suspended for 12 months; relief concerning the deck and stove declined; costs reserved.
Legal Topics
['development Without Development Consent' 'exempt Development' 'prohibited Development' 'residential Use' 'ancillary Use' 'discretionary Relief Under S 9.46 of the Environmental Planning and Assessment Act 1979' 'abuse of Process']
['environment and Planning' 'planning Enforcement'] ['development Without Development Consent' 'exempt Development' 'prohibited Development' 'residential Use' 'ancillary Use' 'discretionary Relief Under S 9.46 of the Environmental Planning and Assessment Act 1979' 'abuse of Process']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Civil Enforcement Proceedings Under S 9.45 of the Environmental Planning and Assessment Act 1979 / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether the rear deck was exempt development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 or required development consent.' 'Whether installation of the stove was development requiring development consent.' "Whether Mr Coyne's residential occupation of the premises was ancillary to the commercial media consultancy use as caretaker accommodation or was a separate and independent prohibited use." 'Whether the proceedings should be dismissed or struck out as frivolous, vexatious, disclosing no reasonable cause of action, or an abuse of process under the Uniform Civil Procedure Rules 2005.' 'Whether the Court should exercise its discretion to grant declarations or orders, and on what terms.']

Ratio Decidendi

The deck was not exempt development because its roof exceeded the height standard in cl 2.12(1)(j1) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, but the Court declined discretionary relief for the deck because no substantive purpose would be served by requiring a Building Information Certificate. The Council failed to establish that installation of the stove required development consent. Mr Coyne's residential occupation was, as a matter of fact and degree, a separate and independent use as residential accommodation and not merely ancillary caretaker use; because residential accommodation was prohibited in the B1 zone, orders restraining...

Court Disposition

Orders made restraining residential use of the property, suspended for 12 months; relief concerning the deck and stove declined; costs reserved.

Orders

  • ['An Order that the First Respondent cease permitting, and otherwise be restrained from permitting or facilitating, the use of the land located at 71 Union Street, South Lismore, being land legally described as Lot 32 of Section 11 in DP 2613 (Property), for residential purposes.' 'An Order that the Second...