Raphael Glaser v Silvana Slaveva Smithwick [2018] NSWLEC 206

Raphael Glaser v Silvana Slaveva Smithwick [2018] NSWLEC 206

The applicant failed to establish that, as at 12 December 2008, any foreshore building line existed in a development control plan or environmental planning instrument in force which would preclude the fence from being exempt development under cl 2.33 of the Codes SEPP. Accordingly, the fence is exempt development and the restrictive covenant does not prevent its construction by operation of cl 1.20 of the Codes SEPP.

Parties
Applicant: Raphael Glaser; Respondent: Silvana Slaveva Smithwick
Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Class 4 Proceeding (civil Enforcement) / Final Judgment With Costs Addendum
Outcome
Applicant's summons dismissed. Applicant to pay respondent's costs as assessed or agreed, including costs up to withdrawal of costs motion.
Legal Topics
Exempt Development, Foreshore Building Line, Interpretation of Environmental Planning Instruments, Restrictive Covenants, Codes SEPP, Gosford Local Environmental Plan
Planning and Environment Law Covenants Administrative Law Exempt Development Foreshore Building Line Interpretation of Environmental Planning Instruments Restrictive Covenants Codes SEPP +1 more

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Parties

Raphael Glaser

Applicant

Silvana Slaveva Smithwick

Respondent

Procedural Posture

Class 4 Proceeding (civil Enforcement) / Final Judgment With Costs Addendum

Legal Issues

  1. 1 Whether the fence is exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP)
  2. 2 Whether a restrictive covenant is set aside by planning instruments (cl 1.20 Codes SEPP)
  3. 3 Whether a foreshore building line exists to preclude exempt development

Ratio Decidendi

The applicant failed to establish that, as at 12 December 2008, any foreshore building line existed in a development control plan or environmental planning instrument in force which would preclude the fence from being exempt development under cl 2.33 of the Codes SEPP. Accordingly, the fence is exempt development and the restrictive covenant does not prevent its construction by operation of cl 1.20 of the Codes SEPP.

Court Disposition

Applicant's summons dismissed. Applicant to pay respondent's costs as assessed or agreed, including costs up to withdrawal of costs motion.

Orders

  • The applicant's summons is dismissed.
  • The applicant is to pay the respondent's costs unless an alternative order is sought within 28 days.