Hennock v Queanbeyan-Palerang Regional Council [2020] NSWLEC 1070

Hennock v Queanbeyan-Palerang Regional Council [2020] NSWLEC 1070

The CMS does not prevent the issue of a building information certificate because, while it regulates building envelope boundaries and permits certain structures outside the envelope, it does not constitute a jurisdictional bar to the grant of a building information certificate. The Council has determined not to take enforcement action, and the structures are structurally sound with no adverse impacts, making it appropriate to direct the Council to issue the certificate.

Parties
First Applicant: Trevor Hennock; Second Applicant: Kylie Hennock; Respondent: Queanbeyan-Palerang Regional Council
Jurisdiction
Australia
Judgment Date
19 February 2020
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal upheld.
Legal Topics
Building Information Certificate, Unauthorised Structures, Community Title Subdivision, Building Envelope, Council Enforcement Powers, Environmental Planning
Planning and Environment Building Information Certificate Unauthorised Structures Community Title Subdivision Building Envelope Council Enforcement Powers Environmental Planning

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Parties

Trevor Hennock

First Applicant

Kylie Hennock

Second Applicant

Queanbeyan-Palerang Regional Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the Community Management Statement (CMS) and its building envelope provisions are a jurisdictional bar to issuing a building information certificate for unauthorised structures erected outside the building envelope
  2. 2 Whether a building information certificate may be issued where structures are structurally sound and no planning or environmental impacts exist, despite being erected contrary to the CMS

Ratio Decidendi

The CMS does not prevent the issue of a building information certificate because, while it regulates building envelope boundaries and permits certain structures outside the envelope, it does not constitute a jurisdictional bar to the grant of a building information certificate. The Council has determined not to take enforcement action, and the structures are structurally sound with no adverse impacts, making it appropriate to direct the Council to issue the certificate.

Court Disposition

Appeal upheld.

Orders

  • The appeal is upheld.
  • Pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, the Council is directed to issue a building information certificate with respect to the gazebo, garage, greenhouse and the shed identified in Annexure A and located at 7 Staunton Place, Googong.