Abdul-Rahman -v- Bankstown City Council [2013] NSWLEC 1034

Abdul-Rahman -v- Bankstown City Council [2013] NSWLEC 1034

The appeals were dismissed because, even after the applicant was given an opportunity to rely on amended plans after the hearing had commenced, the applicant's own surveyor accepted that the amended plans were inaccurate and the Court had no accurate detail before it about the built form, including side setbacks or FSR. Without accurate and certified plans, the Court could not determine the contentions in the modification appeal or direct the Council to issue a building certificate; allowing further amendments would be contrary to the Court's Practice Notes and the overriding purpose.

Jurisdiction
Australia
Judgment Date
26 February 2013
Procedural Posture
Class 1 Modification Appeal and Building Certificate Appeal / Hearing and Determination After S 34 AA Conciliation Was Terminated
Outcome
Both appeals dismissed; exhibits returned.
Legal Topics
['modification of Development Consent' 'building Certificate' 'retrospective Approval' 'amended Plans' 'inaccurate Plans' 'practice Notes' 'overriding Purpose']
['planning and Environment Law' 'civil Procedure'] ['modification of Development Consent' 'building Certificate' 'retrospective Approval' 'amended Plans' 'inaccurate Plans' 'practice Notes' 'overriding Purpose']

Case Brief

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Procedural Posture

Class 1 Modification Appeal and Building Certificate Appeal / Hearing and Determination After S 34 AA Conciliation Was Terminated

Legal Issues

  1. 1 ['Whether the applicant should be permitted to rely on amended plans and additional information after the hearing had commenced.' 'Whether the Court could determine the modification appeal or building certificate appeal where the plans before it did not accurately reflect the built development.' "Whether further amendments should be allowed notwithstanding prejudice, delay and the Court's Practice Notes."]

Ratio Decidendi

The appeals were dismissed because, even after the applicant was given an opportunity to rely on amended plans after the hearing had commenced, the applicant's own surveyor accepted that the amended plans were inaccurate and the Court had no accurate detail before it about the built form, including side setbacks or FSR. Without accurate and certified plans, the Court could not determine the contentions in the modification appeal or direct the Council to issue a building certificate; allowing further amendments would be contrary to the Court's Practice Notes and the overriding purpose.

Court Disposition

Both appeals dismissed; exhibits returned.

Orders

  • ['The appeal in file number 12/11266 is dismissed.' 'The appeal in file number 13/10030 is dismissed.' 'The exhibits are returned.']