Tweed Shire Council v Taylor [2019] NSWLEC 45

Tweed Shire Council v Taylor [2019] NSWLEC 45

Demolition and removal were the appropriate remedy because the respondents unlawfully erected and used the building as a serviced apartment, failed to comply with the development control order, the prohibited serviced apartment use could not be regularised, the building was partly on a Crown road reserve without Crown consent, compliance with relevant building and bush fire requirements was not established, there was little evidence that any lawful exempt, complying or consented future use was realistically available, and the hardship and cost of demolition were not excessive or disproportionate to the benefit of remedying the breaches of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
05 April 2019
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment
Outcome
Application granted; respondents restrained from using the building as a serviced apartment, ordered to demolish and remove it, and ordered to pay the applicant's costs.
Legal Topics
['unlawful Erection and Use of a Building' 'development Control Order' 'prohibited Development' 'demolition Order' 'serviced Apartment in RU2 Rural Landscape Zone' 'bush Fire Risk' 'building Information Certificate' 'costs Follow the Event']
['environmental Planning and Assessment' 'land and Environment' 'civil Enforcement' 'costs'] ['unlawful Erection and Use of a Building' 'development Control Order' 'prohibited Development' 'demolition Order' 'serviced Apartment in RU2 Rural Landscape Zone' 'bush Fire Risk' 'building Information Certificate' 'costs Follow the Event']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment

Legal Issues

  1. 1 ['Whether the respondents breached the Environmental Planning and Assessment Act 1979 by failing to comply with a development control order requiring them to stop using the building as a serviced apartment and to demolish or remove it.' 'Whether the respondents breached the Environmental Planning and Assessment Act 1979 by erecting and using the building for the purpose of a serviced apartment, a prohibited development in the RU2 Rural Landscape Zone under the Tweed Local Environmental Plan 2014.' 'Whether the appropriate order to remedy the breaches was to restrain use only or to require demolition and removal of the building.' "Whether the respondents should pay the applicant's costs of the proceedings."]

Ratio Decidendi

Demolition and removal were the appropriate remedy because the respondents unlawfully erected and used the building as a serviced apartment, failed to comply with the development control order, the prohibited serviced apartment use could not be regularised, the building was partly on a Crown road reserve without Crown consent, compliance with relevant building and bush fire requirements was not established, there was little evidence that any lawful exempt, complying or consented future use was realistically available, and the hardship and cost of demolition were not excessive or disproportionate to the benefit of remedying the breaches of the Environmental Planning and Assessment Act 1979.

Court Disposition

Application granted; respondents restrained from using the building as a serviced apartment, ordered to demolish and remove it, and ordered to pay the applicant's costs.

Orders

  • ['The respondents are not to use the building identified in the Identification survey and photographs attached to the Development Control Order issued by Tweed Shire Council on 20 April 2018 to the respondents erected on a Crown road reserve and land in Lot 5 DP 631620, known as 656 Upper Crystal Creek Road, Upper...