Warranby Pty Ltd v Strathfield Council [2009] NSWLEC 1167

Warranby Pty Ltd v Strathfield Council [2009] NSWLEC 1167

The Court upheld the appeal in part and modified the s 121B order because the parties agreed the order should be revised to address the refurbishment required by condition 102 of development consent DA 0001/122, the property was no longer being used as a boarding house, and the proposed revised orders would facilitate the stipulated restoration works. The Court fixed 25 May 2010 as the completion date because the applicant provided no persuasive evidence justifying 18 months, the respondent had agreed to 12 months, and the works were relatively minor building alterations rather than extensive or intensive structural works.

Jurisdiction
Australia
Judgment Date
26 May 2009
Procedural Posture
Class 1 Appeal Against an Order Issued Pursuant to S 121 B of the Environmental Planning and Assessment Act, 1979 / Consent Orders, With the Court Determining the Outstanding Issue of the Time Period for Compliance Works
Outcome
Appeal upheld in part; respondent's s 121B order dated 23 October 2008 modified; no order as to costs; exhibits returned.
Legal Topics
['section 121 B Order' 'appeal Under S 121 Zk' 'modification of Order by Consent' 'compliance With Development Consent' 'refurbishment of Heritage Dwelling' 'time for Compliance']
['planning and Environment' 'development Control' 'heritage Conservation'] ['section 121 B Order' 'appeal Under S 121 Zk' 'modification of Order by Consent' 'compliance With Development Consent' 'refurbishment of Heritage Dwelling' 'time for Compliance']

Case Brief

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Procedural Posture

Class 1 Appeal Against an Order Issued Pursuant to S 121 B of the Environmental Planning and Assessment Act, 1979 / Consent Orders, With the Court Determining the Outstanding Issue of the Time Period for Compliance Works

Legal Issues

  1. 1 ["Whether the respondent's s 121B order should be modified to reflect the intent of condition 102 of development consent DA 0001/122 in circumstances where the Conservation Management Plan could not be located." 'Whether the applicant should be allowed 18 months, or a shorter period, to complete the refurbishment works particularised in the proposed consent orders.']

Ratio Decidendi

The Court upheld the appeal in part and modified the s 121B order because the parties agreed the order should be revised to address the refurbishment required by condition 102 of development consent DA 0001/122, the property was no longer being used as a boarding house, and the proposed revised orders would facilitate the stipulated restoration works. The Court fixed 25 May 2010 as the completion date because the applicant provided no persuasive evidence justifying 18 months, the respondent had agreed to 12 months, and the works were relatively minor building alterations rather than extensive or intensive structural works.

Court Disposition

Appeal upheld in part; respondent's s 121B order dated 23 October 2008 modified; no order as to costs; exhibits returned.

Orders

  • ['The appeal is upheld in part.' 'The respondent\'s Section 121B order dated 23 October 2008 directed to the applicant is modified by deleting the words under the heading "THE DETAILS OF THE ORDER" commencing with "Council orders …." and finishing with "date of service of this order" and substituting an order...