Clemesha v Mosman Municipal Council [2021] NSWLEC 1002

Clemesha v Mosman Municipal Council [2021] NSWLEC 1002

The Court finds the development control order was valid when made, but is satisfied to modify it in light of agreement between the parties and additional compliance works, including stormwater drainage and remedial actions for bushfire safety. The modified development control order and remedial works address Council concerns and legal requirements, justifying both the amended demolition/retention orders and directing the issue of a Building Information Certificate upon compliance.

Jurisdiction
Australia
Judgment Date
05 January 2021
Procedural Posture
Appeal / Judgment After Hearing
Outcome
Appeal upheld (both proceedings); development control order modified; Building Information Certificate to be issued upon compliance
Legal Topics
['development Control Order' 'building Information Certificate' 'stormwater Drainage' 'unapproved Structures' 'crown Land Management']
['planning Law' 'environmental Law' 'local Government Law' 'property Law'] ['development Control Order' 'building Information Certificate' 'stormwater Drainage' 'unapproved Structures' 'crown Land Management']

Case Brief

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Procedural Posture

Appeal / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the development control order requiring demolition of retaining wall, shed, and stairs was lawfully issued and should be upheld, modified or revoked' 'Whether Building Information Certificate should be issued after provision of further information and remedial works' 'Whether amended works would unreasonably impact stormwater flow or values of the adjoining Reserve']

Ratio Decidendi

The Court finds the development control order was valid when made, but is satisfied to modify it in light of agreement between the parties and additional compliance works, including stormwater drainage and remedial actions for bushfire safety. The modified development control order and remedial works address Council concerns and legal requirements, justifying both the amended demolition/retention orders and directing the issue of a Building Information Certificate upon compliance.

Court Disposition

Appeal upheld (both proceedings); development control order modified; Building Information Certificate to be issued upon compliance

Orders

  • ['The appeal is upheld.' 'The development control order issued on 25 November 2019 is modified as per Annexure A.' 'Specified works in the modified order to be completed within times agreed or as extended.' 'Liberty reserved to apply for extensions if works cannot be completed within specified time due to reasonable...