Sheargold v Baulkham Hills Shire Council [2009] NSWLEC 1294

Sheargold v Baulkham Hills Shire Council [2009] NSWLEC 1294

Although development consent had not been obtained and there was a breach of the Act, the structure was structurally sound, did not encroach on council land, stormwater arrangements had been made or were being made, local residents had raised no outstanding objections, and planting had been undertaken to minimise streetscape visual impact. The objectives of the Development Control Plan were therefore met and it was appropriate to make the consent orders varying the s 121B order.

Jurisdiction
Australia
Judgment Date
29 August 2009
Procedural Posture
Appeal Under S 121 ZK of the Environmental Planning and Assessment Act 1979 From an Order Made Under S 121 B Concerning an Awning/carport Structure Erected Without Development Consent / Ex Tempore Judgment on Application for Consent Orders
Outcome
Consent orders made varying the order dated 4 June 2009; the awning/carport structure permitted to remain subject to conditions; no order as to costs.
Legal Topics
['section 121 B Order' 'development Consent' 'development Control Plan Setbacks' 'awning/carport Structure' 'streetscape Visual Impact' 'stormwater Drainage']
['planning and Environment Law'] ['section 121 B Order' 'development Consent' 'development Control Plan Setbacks' 'awning/carport Structure' 'streetscape Visual Impact' 'stormwater Drainage']

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Procedural Posture

Appeal Under S 121 ZK of the Environmental Planning and Assessment Act 1979 From an Order Made Under S 121 B Concerning an Awning/carport Structure Erected Without Development Consent / Ex Tempore Judgment on Application for Consent Orders

Legal Issues

  1. 1 ['Whether the awning/carport structure erected without development consent should be permitted to remain subject to conditions.' 'Whether the structure met the objectives of the Development Control Plan despite the 2.0 metre secondary street frontage setback requirement and concerns about visual impact on the streetscape.' 'Whether appropriate arrangements existed or would be made for structural soundness, absence of encroachment on council land, landscaping and stormwater drainage.']

Ratio Decidendi

Although development consent had not been obtained and there was a breach of the Act, the structure was structurally sound, did not encroach on council land, stormwater arrangements had been made or were being made, local residents had raised no outstanding objections, and planting had been undertaken to minimise streetscape visual impact. The objectives of the Development Control Plan were therefore met and it was appropriate to make the consent orders varying the s 121B order.

Court Disposition

Consent orders made varying the order dated 4 June 2009; the awning/carport structure permitted to remain subject to conditions; no order as to costs.

Orders

  • ['The order dated 4 June 2009 issued to the applicant pursuant to s 121B of the Environmental Planning and Assessment Act may be varied so that the existing metal awning carport structure at 2 Lightwood Way, Beaumont Hills be permitted to remain on the property provided specified conditions occur.' 'The applicant...