Wilkie v Blacktown City Council [2012] NSWLEC 1223

Wilkie v Blacktown City Council [2012] NSWLEC 1223

Although the Court was not satisfied on the visual evidence that there was a satisfactory continuous membrane under the existing slab, the adequacy of the waterproofing membrane could reasonably be resolved by a deferred commencement condition requiring assessment and a report to council confirming BCA compliance or an alternative solution before the other consent conditions became operational. With that issue addressed, the environmental impacts would be acceptable, the other issues were agreed, and the proposal was generally consistent with the zone objectives.

Jurisdiction
Australia
Judgment Date
09 August 2012
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application for Alterations and Additions to an Existing Building for Use as a Dwelling / Determination After a S 34 Conference; the S 34 C Was Terminated Because There Was No Agreement on the BCA Contention
Outcome
The appeal was upheld and development consent was granted subject to conditions.
Legal Topics
['development Application' 'dwelling House' 'building Code of Australia Compliance' 'dampness and Waterproofing Membrane' 'bushfire Matters' 'zone Objectives' 'deferred Commencement Condition']
['planning and Environment Law' 'development Consent' 'building Regulation'] ['development Application' 'dwelling House' 'building Code of Australia Compliance' 'dampness and Waterproofing Membrane' 'bushfire Matters' 'zone Objectives' 'deferred Commencement Condition']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of a Development Application for Alterations and Additions to an Existing Building for Use as a Dwelling / Determination After a S 34 Conference; the S 34 C Was Terminated Because There Was No Agreement on the BCA Contention

Legal Issues

  1. 1 ['Whether the existing slab had adequate waterproofing or damp-proof membrane to satisfy the BCA dampness requirements.' 'Whether any deficiency in dampness control could be addressed by a deferred commencement condition.' 'Whether the proposal was generally consistent with the applicable zone objectives and planning controls.']

Ratio Decidendi

Although the Court was not satisfied on the visual evidence that there was a satisfactory continuous membrane under the existing slab, the adequacy of the waterproofing membrane could reasonably be resolved by a deferred commencement condition requiring assessment and a report to council confirming BCA compliance or an alternative solution before the other consent conditions became operational. With that issue addressed, the environmental impacts would be acceptable, the other issues were agreed, and the proposal was generally consistent with the zone objectives.

Court Disposition

The appeal was upheld and development consent was granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to development No 10-2926 for alterations and additions to existing building at 106 Robert Street Riverstone, subject to conditions in Annexure A.' 'The exhibits may be returned except 1, 2, 4, A and G.']