Paul Anthony Murace v Northern Beaches Council [2017] NSWLEC 1121

Paul Anthony Murace v Northern Beaches Council [2017] NSWLEC 1121

The appeal was dismissed because the structure was erected without the development consent required under the EPA Act and the LEP, was not exempt development, and even the applicant's modified proposal to retain only the slab could not satisfy the Pittwater 21 Development Control Plan 2014 requirements for character and landscaped area. The remaining slab would leave the site below the 50% minimum landscaped area requirement, the 6% variation would not make compliance achievable, and retention would adversely affect visual character and stormwater management. The Court therefore upheld the Council's Orders 2 and 12, with modified compliance dates and clarification that the inspection pit...

Jurisdiction
Australia
Judgment Date
10 March 2009
Procedural Posture
Class 1 Appeal Against Orders 2 and 12 Issued Under S 121 B of the Environmental Planning and Assessment Act 1979 / Final Judgment
Outcome
Appeal dismissed; Council Order upheld with minor modifications to compliance dates and clarification about the inspection pit.
Legal Topics
['enforcement Order' 'unauthorised Building Works' 'development Consent' 'exempt Development' 'landscaped Area Controls' 'development Control Plan Discretion' 'visual Impact and Locality Character']
['planning and Environment Law' 'development Control' 'local Government Enforcement'] ['enforcement Order' 'unauthorised Building Works' 'development Consent' 'exempt Development' 'landscaped Area Controls' 'development Control Plan Discretion' 'visual Impact and Locality Character']

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Procedural Posture

Class 1 Appeal Against Orders 2 and 12 Issued Under S 121 B of the Environmental Planning and Assessment Act 1979 / Final Judgment

Legal Issues

  1. 1 ['Whether Orders 2 and 12 requiring demolition of the unauthorised concrete slab and cement block walls and restoration of the premises should be revoked, modified or upheld.' 'Whether the structure was exempt development or required development consent under the applicable planning controls.' 'Whether retaining the slab, with removal of the besser block walls, would comply with or acceptably vary the Pittwater 21 Development Control Plan 2014 requirements for landscaped area and locality character.' 'Whether the Court should exercise its powers under s 121ZK of the Environmental Planning and Assessment Act 1979 to permit retention of the slab.']

Ratio Decidendi

The appeal was dismissed because the structure was erected without the development consent required under the EPA Act and the LEP, was not exempt development, and even the applicant's modified proposal to retain only the slab could not satisfy the Pittwater 21 Development Control Plan 2014 requirements for character and landscaped area. The remaining slab would leave the site below the 50% minimum landscaped area requirement, the 6% variation would not make compliance achievable, and retention would adversely affect visual character and stormwater management. The Court therefore upheld the Council's Orders 2 and 12, with modified compliance dates and clarification that the inspection pit...

Court Disposition

Appeal dismissed; Council Order upheld with minor modifications to compliance dates and clarification about the inspection pit.

Orders

  • ['The appeal is dismissed.' 'Order No 2& 12 under s 121B of the Environmental Planning and Assessment Act 1979 issued by Pittwater Council in respect of premises described as Lot 13 DP 234316, 180 Warriewood Road, Warriewood, to demolish a building and restore premises, is upheld, save that the dates of compliance...