Sarian v The Hills Shire Council [2021] NSWLEC 1039

Sarian v The Hills Shire Council [2021] NSWLEC 1039

The Occupation Certificate did not prevent the Council from requiring completion of outstanding Stage 1 works under the Development Control Order. The Court has the power under the Environmental Planning and Assessment Act 1979 and relevant case law to make, modify, or substitute a development control order with an appropriate compliance date, considering the amenity of residents as a relevant factor. Order No. 13 of Schedule 5 may be issued in relation to incomplete authorised works in a particular stage, even where an Occupation Certificate was previously issued in error.

Parties
First Applicant: Stavroula Sarian; Second Applicant: Nabil Sarian; Respondent: The Hills Shire Council
Jurisdiction
Australia
Judgment Date
25 January 2021
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal upheld in part; Development Control Order varied with new compliance date set
Legal Topics
Development Control Order, Powers of Council, Development Consent Conditions, Amenity, Appeals Against Orders
Planning Law Environmental Law Development Control Order Powers of Council Development Consent Conditions Amenity Appeals Against Orders

Case Brief

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Parties

Stavroula Sarian

First Applicant

Nabil Sarian

Second Applicant

The Hills Shire Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the Occupation Certificate prevented the Council from requiring the works set out in the Development Control Order (DCO)
  2. 2 Whether the Court has power to make an Order in relation to the DCO on the grounds that there has not been non-compliance with the planning approval
  3. 3 Whether the impact on the amenity of the residents is a relevant consideration in granting the Order

Ratio Decidendi

The Occupation Certificate did not prevent the Council from requiring completion of outstanding Stage 1 works under the Development Control Order. The Court has the power under the Environmental Planning and Assessment Act 1979 and relevant case law to make, modify, or substitute a development control order with an appropriate compliance date, considering the amenity of residents as a relevant factor. Order No. 13 of Schedule 5 may be issued in relation to incomplete authorised works in a particular stage, even where an Occupation Certificate was previously issued in error.

Court Disposition

Appeal upheld in part; Development Control Order varied with new compliance date set

Orders

  • The appeal is upheld in so far as the date for compliance with the Order is amended.
  • A Development Control Order pursuant to Schedule 5, Part 1, Order No. 13 of the Environmental Planning and Assessment Act 1979 is made, with compliance required by 28 June 2021, as per Attachment A.