Maroun Holdings Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1013

Maroun Holdings Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1013

Although the stairs were constructed without planning approval in contravention of the EPA Act, demolition is not warranted because the Plan of Management contemplated retention and upgrade of stairs, Council officer representations communicated approval for their construction, Maroun reasonably relied on those representations, and no significant safety risk or public harm was established. The order should be modified to require compliance works rather than demolition.

Jurisdiction
Australia
Judgment Date
10 January 2020
Procedural Posture
Appeal / Judgment and Final Orders
Outcome
Appeal upheld. Development control order substituted.
Legal Topics
['development Control Orders' 'unauthorized Building Works' 'discretion to Revoke or Modify Orders' 'plan of Management for Public Reserve' 'compliance With Planning Instruments']
['planning and Environment Law' 'local Government Law'] ['development Control Orders' 'unauthorized Building Works' 'discretion to Revoke or Modify Orders' 'plan of Management for Public Reserve' 'compliance With Planning Instruments']

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Procedural Posture

Appeal / Judgment and Final Orders

Legal Issues

  1. 1 ['Whether demolition order for unauthorised stairs on public reserve should be upheld, revoked or modified' 'Whether statutory requirements for development control order were met' 'Whether council officer representations affected the validity or appropriateness of the order' 'Whether safety, compliance and procedural issues justified demolition']

Ratio Decidendi

Although the stairs were constructed without planning approval in contravention of the EPA Act, demolition is not warranted because the Plan of Management contemplated retention and upgrade of stairs, Council officer representations communicated approval for their construction, Maroun reasonably relied on those representations, and no significant safety risk or public harm was established. The order should be modified to require compliance works rather than demolition.

Court Disposition

Appeal upheld. Development control order substituted.

Orders

  • ['The appeal is upheld.' "The Respondent's Development Control Order dated 11 March 2019 is substituted in accordance with s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979 in the terms set out in Annexure A (The Substituted Order)." 'The Applicant shall forward to the Respondent by 14 April 2020 a...