Bandong & Anor v Penrith City Council [2014] NSWLEC 1226

Bandong & Anor v Penrith City Council [2014] NSWLEC 1226

The Court held that it lacked jurisdiction to confirm a development consent for works (the deck) already constructed before application; therefore, the appeal must be dismissed. Even if jurisdiction existed, the depth and positioning of the deck would have adverse amenity impacts, and reliance solely on the hedge for privacy is insufficient; reduction in deck size would mitigate these issues. Insufficient information is available regarding the impact of deck supports on the drainage easement.

Parties
First Applicant: Jose Bandong; Second Applicant: Carolyne-Jane Bandong; Respondent: Penrith City Council
Jurisdiction
Australia
Judgment Date
04 November 2014
Procedural Posture
Appeal / Judgment After Hearing Following Unsuccessful Conciliation Conference
Outcome
Appeal dismissed
Legal Topics
Development Application Conditions, Privacy Impacts From Developments, Development Near Easements
Planning and Environment Law Development Application Conditions Privacy Impacts From Developments Development Near Easements

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Parties

Jose Bandong

First Applicant

Carolyne-Jane Bandong

Second Applicant

Penrith City Council

Respondent

Procedural Posture

Appeal / Judgment After Hearing Following Unsuccessful Conciliation Conference

Legal Issues

  1. 1 Whether condition requiring demolition of portion of deck within 2m of rear boundary should be deleted from development consent
  2. 2 Jurisdiction to grant consent for already constructed works
  3. 3 Privacy and amenity impacts of deck on adjoining properties

Ratio Decidendi

The Court held that it lacked jurisdiction to confirm a development consent for works (the deck) already constructed before application; therefore, the appeal must be dismissed. Even if jurisdiction existed, the depth and positioning of the deck would have adverse amenity impacts, and reliance solely on the hedge for privacy is insufficient; reduction in deck size would mitigate these issues. Insufficient information is available regarding the impact of deck supports on the drainage easement.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The exhibits, except Exhibits 1, 4 and B, are returned.