Xiang Rong Investments Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1087

Xiang Rong Investments Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1087

The Court was satisfied, on the site inspection and expert evidence, that the works the subject of the s 96(2) modification application were substantially the same development as originally approved and merited approval, and that the building certificate could be issued once the agreed works required for Building Code of Australia compliance were completed.

Jurisdiction
Australia
Judgment Date
29 March 2012
Procedural Posture
Class 1 Appeals Concerning Refusal of a Modification Application and a Building Certificate Application / Principal Judgment and Orders After Consent Resolution of Contentions
Outcome
Appeals upheld; modification application approved subject to conditions; respondent directed to issue a building certificate after completion and certification of agreed works.
Legal Topics
['modification of Development Consent' 'building Certificate' 'building Code of Australia Compliance' 'consent Orders' 'residential Flat Building']
['planning and Environment' 'development Consent' 'building Regulation'] ['modification of Development Consent' 'building Certificate' 'building Code of Australia Compliance' 'consent Orders' 'residential Flat Building']

Case Brief

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Procedural Posture

Class 1 Appeals Concerning Refusal of a Modification Application and a Building Certificate Application / Principal Judgment and Orders After Consent Resolution of Contentions

Legal Issues

  1. 1 ['Whether development consent DA0651/05 should be modified under s 96(2) of the Environmental Planning and Assessment Act 1979 to reflect works carried out during construction.' 'Whether a building certificate should issue for works carried out contrary to the development consent and without a construction certificate.' 'Whether the works were substantially the same development as that approved under the consent and would satisfy the Building Code of Australia subject to agreed works.']

Ratio Decidendi

The Court was satisfied, on the site inspection and expert evidence, that the works the subject of the s 96(2) modification application were substantially the same development as originally approved and merited approval, and that the building certificate could be issued once the agreed works required for Building Code of Australia compliance were completed.

Court Disposition

Appeals upheld; modification application approved subject to conditions; respondent directed to issue a building certificate after completion and certification of agreed works.

Orders

  • ['In matter No. 10091 of 2012, the appeal is upheld.' 'Within 5 working days of the filing with the Court and service upon the Respondent of a certificate from the Principal Certifying Authority confirming that the matters referred to in Annexures A have been completed in accordance with the requirements of the...