Wyong Shire Council v Cohen and Anor [2004] NSWLEC 171

Wyong Shire Council v Cohen and Anor [2004] NSWLEC 171

The demountable office was a building because it was a metal office structure connected to electricity and telephone services, supported on piers, and not readily movable or a moveable dwelling. The shipping container was also a structure and therefore a building for the purposes of s 4(1) of the Environmental Planning and Assessment Act 1979, and was not a temporary or mobile structure. The home occupation provisions of the Wyong Local and Environmental Plan 1991 concerned use of land and did not exempt the respondents from obtaining consent for the erection or placement of buildings or structures. Because no development consent had been obtained, the respondents breached the...

Jurisdiction
Australia
Judgment Date
10 February 2004
Procedural Posture
Proceedings Seeking Declarations and Orders Concerning Development Allegedly Carried Out Without Development Consent / Ex Tempore Judgment After Hearing
Outcome
Application granted; declarations and removal orders made; respondents ordered to pay the applicant's costs.
Legal Topics
['development Without Consent' 'erection of Structures' 'home Occupation' 'temporary Structure' 'declarations and Mandatory Removal Orders' 'costs']
['environmental Planning and Assessment' 'local Government' 'land Use Planning'] ['development Without Consent' 'erection of Structures' 'home Occupation' 'temporary Structure' 'declarations and Mandatory Removal Orders' 'costs']

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Procedural Posture

Proceedings Seeking Declarations and Orders Concerning Development Allegedly Carried Out Without Development Consent / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the demountable site office and shipping container on the land were buildings or structures amounting to development under the Environmental Planning and Assessment Act 1979.' 'Whether the respondents were required to obtain development consent for the office building and shipping container.' 'Whether the home occupation provisions of the Wyong Local and Environmental Plan 1991 exempted the respondents from obtaining consent for the structures.' 'Whether the Court should exercise its discretion to make declarations and orders for removal of the structures.']

Ratio Decidendi

The demountable office was a building because it was a metal office structure connected to electricity and telephone services, supported on piers, and not readily movable or a moveable dwelling. The shipping container was also a structure and therefore a building for the purposes of s 4(1) of the Environmental Planning and Assessment Act 1979, and was not a temporary or mobile structure. The home occupation provisions of the Wyong Local and Environmental Plan 1991 concerned use of land and did not exempt the respondents from obtaining consent for the erection or placement of buildings or structures. Because no development consent had been obtained, the respondents breached the...

Court Disposition

Application granted; declarations and removal orders made; respondents ordered to pay the applicant's costs.

Orders

  • ['Declaration that the First and Second Respondents and each of them by themselves, their servants or agents have carried out or caused to be carried out development on the land identified as Lot 91 DP 844608 and known as No. 3 Stimsons Lane (formerly known as No. 9 Halloran Lane), Tumbi Umbi in breach of the...