Joseph v Lane Cove Council [2012] NSWLEC 1013

Joseph v Lane Cove Council [2012] NSWLEC 1013

The structure could be retained because, with modifications requiring removal of the western window, privacy screening, capping and disconnection of plumbing from sewer lines, dark factory pre-coloured metal cladding and screen planting, it would be exempt development as a cabana and its privacy, bulk, character and dwelling-use concerns would be addressed. It was not necessary to remove walls, provide an earth floor, reduce the wall height, remove electrical wiring, or impose a positive covenant.

Jurisdiction
Australia
Judgment Date
24 January 2012
Procedural Posture
Class 1 Appeals Against an Order Requiring Demolition and Removal of a Building Structure and Against Deemed Refusal of an Application to Issue a Building Certificate / Judgment After Hearing
Outcome
In matter No. 10737 of 2011 the appeal was upheld in part. In matter No. 11012 of 2011 the appeal was upheld.
Legal Topics
['exempt Development' 'cabana or Outbuilding' 'demolition Order' 'building Certificate' 'amenity Impacts' 'privacy and Noise' 'capability of Use as a Dwelling']
['planning and Environment Law' 'development Control' 'building Certificates'] ['exempt Development' 'cabana or Outbuilding' 'demolition Order' 'building Certificate' 'amenity Impacts' 'privacy and Noise' 'capability of Use as a Dwelling']

Case Brief

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Procedural Posture

Class 1 Appeals Against an Order Requiring Demolition and Removal of a Building Structure and Against Deemed Refusal of an Application to Issue a Building Certificate / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the structure was exempt development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 as a cabana.' 'Whether the structure should be demolished or retained with modifications.' 'Whether the structure was capable of use as a dwelling because of plumbing, electrical and data cabling.' 'Whether the structure caused unacceptable privacy, noise, visual bulk or amenity impacts on adjoining properties.' 'Whether a building certificate should be issued after required modification works.']

Ratio Decidendi

The structure could be retained because, with modifications requiring removal of the western window, privacy screening, capping and disconnection of plumbing from sewer lines, dark factory pre-coloured metal cladding and screen planting, it would be exempt development as a cabana and its privacy, bulk, character and dwelling-use concerns would be addressed. It was not necessary to remove walls, provide an earth floor, reduce the wall height, remove electrical wiring, or impose a positive covenant.

Court Disposition

In matter No. 10737 of 2011 the appeal was upheld in part. In matter No. 11012 of 2011 the appeal was upheld.

Orders

  • ['In appeal 10737 of 2011, the order issued by Lane Cove Council on 26 July 2011 to Mrs C.J Joseph in relation to Lot 41 DP 222282, No. 67 Riverview Street, Riverview was modified.' 'The requirement to demolish and remove the unauthorised building structure was revoked and new requirements requiring modification of...