Macaulay v Bayside Council [2019] NSWLEC 1568

Macaulay v Bayside Council [2019] NSWLEC 1568

Because the parties agreed to a modified order preventing habitable use of the attic space, and the Court was satisfied that the substituted order could legally be made under s 8.18(4) of the Environmental Planning and Assessment Act 1979 and was a decision the Court could have made in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Jurisdiction
Australia
Judgment Date
21 November 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a General Order Issued by Bayside Council / Orders Made Following Conciliation Conference and Agreement Under S 34(3)(a) of the Land and Environment Court Act 1979
Outcome
The appeal was upheld and a substituted order was made in place of the Development Control Order issued by Bayside Council dated 22 January 2019.
Legal Topics
['unauthorised Attic Construction' 'dormer Windows' 'building Information Certificate' 'national Construction Code – Building Code of Australia Compliance' 'substitution of Development Control Order']
['environmental Planning and Assessment' 'land and Environment' 'development Control Orders'] ['unauthorised Attic Construction' 'dormer Windows' 'building Information Certificate' 'national Construction Code – Building Code of Australia Compliance' 'substitution of Development Control Order']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.18 of the Environmental Planning and Assessment Act 1979 Against a General Order Issued by Bayside Council / Orders Made Following Conciliation Conference and Agreement Under S 34(3)(a) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the Development Control Order issued by Bayside Council should be revoked, modified, or substituted under s 8.18(4) of the Environmental Planning and Assessment Act 1979.' 'Whether a modified order preventing use of the attic space for habitable purposes could legally be made.' "Whether the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979 was one the Court could make in the proper exercise of its functions."]

Ratio Decidendi

Because the parties agreed to a modified order preventing habitable use of the attic space, and the Court was satisfied that the substituted order could legally be made under s 8.18(4) of the Environmental Planning and Assessment Act 1979 and was a decision the Court could have made in the proper exercise of its functions, the Court was required under s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement.

Court Disposition

The appeal was upheld and a substituted order was made in place of the Development Control Order issued by Bayside Council dated 22 January 2019.

Orders

  • ['The appeal is upheld.' 'Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court makes the Order set out in Annexure "A" in substitution of the Development Control Order issued by the Council to the Respondent dated 22 January 2019.']