Sud v Sutherland Shire Council [2013] NSWLEC 1177

Sud v Sutherland Shire Council [2013] NSWLEC 1177

The Building Certificate application did not merit approval because the retained 3 m roof slab extension, supporting piers/column and side screens would exacerbate the already large dwelling's visual bulk and scale, dominate neighbouring properties, and likely increase use of the elevated balcony with adverse privacy and aural amenity impacts. The submitted structural certification was inadequate for the completed structure and the roof slab was an integral component, and pending s 123 proceedings seeking demolition of the same works provided a further reason not to issue a partial Building Certificate under the statutory scheme.

Jurisdiction
Australia
Judgment Date
24 September 2013
Procedural Posture
Class 1 Appeal Against Refusal to Issue a Building Certificate / Final Determination After Hearing
Outcome
Appeal dismissed; partial Building Certificate refused.
Legal Topics
['partial Building Certificate' 'unapproved Building Works' 'visual Bulk and Scale' 'privacy and Acoustic Amenity Impacts' 'structural Certification' 'section 123 Proceedings']
['environmental Planning and Assessment' 'land and Environment' 'building Certification'] ['partial Building Certificate' 'unapproved Building Works' 'visual Bulk and Scale' 'privacy and Acoustic Amenity Impacts' 'structural Certification' 'section 123 Proceedings']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal to Issue a Building Certificate / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether a partial Building Certificate should issue for the 3 m extension of the roof slab over the rear balcony and supporting columns.' 'Whether the extended roof slab and supporting columns caused unacceptable visual bulk and scale impacts on adjoining properties.' 'Whether retention of the covered balcony would likely increase use and cause adverse visual privacy and aural amenity impacts on neighbours.' 'Whether the applicant had provided adequate structural certification for the roof slab and completed structure.' 'Whether pending proceedings under s 123 of the Environmental Planning and Assessment Act 1979 weighed against issuing the Building Certificate.']

Ratio Decidendi

The Building Certificate application did not merit approval because the retained 3 m roof slab extension, supporting piers/column and side screens would exacerbate the already large dwelling's visual bulk and scale, dominate neighbouring properties, and likely increase use of the elevated balcony with adverse privacy and aural amenity impacts. The submitted structural certification was inadequate for the completed structure and the roof slab was an integral component, and pending s 123 proceedings seeking demolition of the same works provided a further reason not to issue a partial Building Certificate under the statutory scheme.

Court Disposition

Appeal dismissed; partial Building Certificate refused.

Orders

  • ['The appeal is dismissed.' 'The application for a partial Building Certificate (BC 12/0089) for the 3 m extension of the roof slab over the rear balcony and supporting columns at 215 Loftus Avenue, Loftus is refused.' 'The exhibits may be returned except for 1, 2, 3, 4, 8, A, B, C and E.']