Patane v Blacktown City Council [2020] NSWLEC 1111

Patane v Blacktown City Council [2020] NSWLEC 1111

The extension was built without a construction certificate and there were relevant BCA compliance issues concerning drainage and the absence of proof of an effective vapour barrier beneath the slab. However, the experts agreed that drainage could be addressed by works and also identified in-principle alternatives to demolition for the slab issue. In exercising the broad discretion on appeal, demolition of the whole extension and slab was disproportionate to the shortcomings because compliance could be pursued by a substituted development control order specifying the standards to be met and requiring appropriate particulars of work.

Jurisdiction
Australia
Judgment Date
12 March 2020
Procedural Posture
Class 1 Appeal Against a Development Control Order Under S 8.18(1) of the Environmental Planning and Assessment Act 1979 / Principal Judgment With Final Orders Made by Addendum
Outcome
The appeal was upheld and a development control order was substituted for the original development control order requiring demolition.
Legal Topics
['development Control Order' 'building Code of Australia Compliance' 'unauthorised Building Work Without Construction Certificate' 'drainage and Surface Water Entry' 'concrete Slab Vapour Barrier' 'proportionality of Demolition Order' 'substituted Order']
['environmental Planning and Assessment' 'building and Construction' 'local Government Enforcement'] ['development Control Order' 'building Code of Australia Compliance' 'unauthorised Building Work Without Construction Certificate' 'drainage and Surface Water Entry' 'concrete Slab Vapour Barrier' 'proportionality of Demolition Order' 'substituted Order']

Case Brief

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Procedural Posture

Class 1 Appeal Against a Development Control Order Under S 8.18(1) of the Environmental Planning and Assessment Act 1979 / Principal Judgment With Final Orders Made by Addendum

Legal Issues

  1. 1 ['Whether the extension should be demolished under the development control order or whether another order should be substituted.' 'Whether drainage around the extension complied with the Building Code of Australia requirements for preventing surface water entry.' 'Whether the slab beneath the extension was inadequate because there was no evidence of a compliant vapour barrier.' 'How the Court should exercise its discretion on an appeal against a development control order.']

Ratio Decidendi

The extension was built without a construction certificate and there were relevant BCA compliance issues concerning drainage and the absence of proof of an effective vapour barrier beneath the slab. However, the experts agreed that drainage could be addressed by works and also identified in-principle alternatives to demolition for the slab issue. In exercising the broad discretion on appeal, demolition of the whole extension and slab was disproportionate to the shortcomings because compliance could be pursued by a substituted development control order specifying the standards to be met and requiring appropriate particulars of work.

Court Disposition

The appeal was upheld and a development control order was substituted for the original development control order requiring demolition.

Orders

  • ['The appeal is upheld.' "Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, substitute for the development control order the subject of this appeal the development control order which is annexed and marked 'B'." 'The exhibits other than Exhibits A and 3 are returned.']