Van der Zypp & Ors v Murray Shire Council [2010] NSWLEC 1242

Van der Zypp & Ors v Murray Shire Council [2010] NSWLEC 1242

The structure was a building and its erection in its location near the Murray River required development consent under cl30 of the Murray Local Environmental Plan 1989 and the Environmental Planning and Assessment Act 1979. It was not exempt development under the Code or the Murray DCP, and any alleged oral Council advice did not override the statutory requirement to obtain consent. Because the structure was erected without required development consent, the grounds for Order No 2 under s121B were satisfied and the order was properly issued, but the compliance period should be extended to allow discussions and possible approvals for relocation.

Jurisdiction
Australia
Judgment Date
31 August 2010
Procedural Posture
Appeal Under S121 ZK of the Environmental Planning and Assessment Act 1979 Against an Order Issued Under S121 B of the Act / Judgment After Hearing
Outcome
Appeal upheld in part; the s121B order was modified by extending the period for compliance.
Legal Topics
['section 121 B Order' 'development Consent' 'development Along Rivers' 'exempt Development' 'state Environmental Planning Policy No 1 Development Standards']
['planning and Environment Law' 'development Control'] ['section 121 B Order' 'development Consent' 'development Along Rivers' 'exempt Development' 'state Environmental Planning Policy No 1 Development Standards']

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Procedural Posture

Appeal Under S121 ZK of the Environmental Planning and Assessment Act 1979 Against an Order Issued Under S121 B of the Act / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the structure required development consent under the Murray Local Environmental Plan 1989 and the Environmental Planning and Assessment Act 1979.' 'Whether the structure was exempt development under Chapter 5 of the Murray Development Control Plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' 'Whether oral advice allegedly given by a Council officer affected the requirement to obtain development consent.' 'Whether the order issued under s121B of the Environmental Planning and Assessment Act 1979 should be revoked, modified, or otherwise dealt with under s121ZK(4).']

Ratio Decidendi

The structure was a building and its erection in its location near the Murray River required development consent under cl30 of the Murray Local Environmental Plan 1989 and the Environmental Planning and Assessment Act 1979. It was not exempt development under the Code or the Murray DCP, and any alleged oral Council advice did not override the statutory requirement to obtain consent. Because the structure was erected without required development consent, the grounds for Order No 2 under s121B were satisfied and the order was properly issued, but the compliance period should be extended to allow discussions and possible approvals for relocation.

Court Disposition

Appeal upheld in part; the s121B order was modified by extending the period for compliance.

Orders

  • ['Appeal upheld in part.' 'The order issued under s 121B, Order No 2, of the Environmental Planning and Assessment Act 1979 dated 26 March 2010 is modified by the deletion of the words under the heading Period for Compliance with Order and the insertion in lieu of the following: "Period for compliance with order The...