Strathfield Municipal Council v C & C Investment Trading Pty Ltd (No 3) [2018] NSWLEC 69

Strathfield Municipal Council v C & C Investment Trading Pty Ltd (No 3) [2018] NSWLEC 69

The development as built materially departed from the Court-approved development consent and approved plans in significant respects, and the first and second respondents were responsible for those works. Those departures were flagrant breaches of the Environmental Planning and Assessment Act 1979, not minor or technical variations. Because the design and construction of the boarding house were inconsistent with the development consent, the third respondent's interim occupation certificate was issued beyond power and in breach of the Act and Regulation. No cogent discretionary reason justified withholding relief, so orders requiring compliance with the consent, declaring the occupation...

Jurisdiction
Australia
Judgment Date
09 May 2018
Procedural Posture
Class 4 Civil Enforcement Proceedings Under the Environmental Planning and Assessment Act 1979 / Principal Judgment After Substantive Hearing
Outcome
Application substantially granted. The first and second respondents were ordered to comply with the development consent, the interim occupation certificate was declared invalid, occupation was ordered to cease until a valid occupation certificate is issued, and costs were ordered against the first and second...
Legal Topics
['boarding House Development' 'departure From Development Consent and Approved Plans' 'interim Occupation Certificate Validity' 'orders to Remedy or Restrain Breach of the Environmental Planning and Assessment Act 1979' 'heritage Conservation Area and Heritage Item Impacts']
['environmental Planning and Development' 'civil Enforcement' 'heritage Conservation' 'building Certification'] ['boarding House Development' 'departure From Development Consent and Approved Plans' 'interim Occupation Certificate Validity' 'orders to Remedy or Restrain Breach of the Environmental Planning and Assessment Act 1979' 'heritage Conservation Area and Heritage Item Impacts']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings Under the Environmental Planning and Assessment Act 1979 / Principal Judgment After Substantive Hearing

Legal Issues

  1. 1 ['Whether the development had not been built in accordance with the approved plans.' 'Whether the first and second respondents, as owner and builder, breached the Environmental Planning and Assessment Act 1979.' 'Whether Occupation Certificate 17/0210-01 issued by the third respondent was invalid.' 'What relief should be granted under s 124 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The development as built materially departed from the Court-approved development consent and approved plans in significant respects, and the first and second respondents were responsible for those works. Those departures were flagrant breaches of the Environmental Planning and Assessment Act 1979, not minor or technical variations. Because the design and construction of the boarding house were inconsistent with the development consent, the third respondent's interim occupation certificate was issued beyond power and in breach of the Act and Regulation. No cogent discretionary reason justified withholding relief, so orders requiring compliance with the consent, declaring the occupation...

Court Disposition

Application substantially granted. The first and second respondents were ordered to comply with the development consent, the interim occupation certificate was declared invalid, occupation was ordered to cease until a valid occupation certificate is issued, and costs were ordered against the first and second...

Orders

  • ['The First Respondent and the Second Respondent are ordered, as from the date of these Orders, to do all things necessary so as to comply with the Development Consent given by the Court in Case 10918 of 2017, including compliance with Condition 1 of Part B – Operational Conditions and the specified approved plans...