Elbaf v Campbelltown City Council - [2014] NSWLEC 1074

Land and Environment Court

New South Wales

Medium Neutral Citation: Elbaf & Anor v Campbelltown City Council [2014] NSWLEC 1074
Hearing dates: 14 - 15 April 2014
Decision date: 29 April 2014
Jurisdiction: Class 1
Before: Morris C
Decision:
In matter No 10969 of 2013
(a)The appeal is dismissed.
(b)The application for a Building Certificate for those works at Lot 1 DP 1039153 Zouch Road, Ingleburn included in the application to Campbelltown City Council reference 957/2013/BC-UW dated 6 May 2013 is refused.
In matter No 10970 of 2013
(a)The appeal is dismissed.
(b)Development Application 879/2013 for the construction of a two storey dwelling at Lot 1 DP 1039153 Zouch Road, Ingleburn is determined by the refusal of development consent.

Catchwords: Development application for completion of partially completed building; whether a dwelling; siting of structure in relation to setback requirements; Building Certificate
Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Local Government Act 1993; State Environmental Planning Policy (Major Development) 2005 Edmondson Park South; Campbelltown (Urban Area) Local Environmental Plan 2002; Environmental Planning and Assessment Regulation 2000; Civil Procedure Act 2005
Cases Cited: Dobrohotoff v Bennic [2013] NSWLEC 61; Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094
Texts Cited: Campbelltown (Sustainable City) Development Control Plan 2013; Development Control Plan 49 - Rural Environmental Protection Subdivision and Dwelling Policy
Category: Principal judgment
Parties:
Abdulhalim Elbaf
Amne Elbaf (Applicants)
Campbelltown City Council (Respondent)
Representation:
Mr J Lazarus (Applicants)
Mr J Burrell
Burrell Solicitors (Applicants)
Mr A Seton
Marsdens Law Group (Respondent)

File Number(s): 10969 of 2013 10970 of 2013

Judgment

These are two appeals that relate to structures that have been constructed at Lot 1 DP 1039153 Zouch Road, Ingleburn. The parties agree that the matters are to be heard together, with evidence in one to be available as the evidence of the other.

Matter Number 10969 of 2013 is an appeal under s149F of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of an application for a building certificate for the structures as built on the land.

Matter Number 10970 of 2013 is an appeal under s 97(1) of the EPA Act heard under the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act) against Campbelltown Council's actual refusal of a development application for the completion of a partly built structure and use of the completed building as a dwelling. No resolution was reached during the conciliation phase and the matter proceeded directly to hearing.

Background and the proposals

The applicants have partly constructed a dwelling with outbuilding on the site relying on a Complying Development Certificate (CDC) issued by a private certifier on 13 December 2012.

Campbelltown Council (council) gave an order to the applicants to cease work on the basis that the CDC was alleged to be invalid. The validity of the CDC is the subject of Class 4 proceedings to this Court. Those proceedings are listed for hearing in June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWLEC 1074
Decision Date: 29 April 2014

CaseChat Overview and Summary

Elbaf brought an appeal against decisions made by the Campbelltown City Council. The appellant sought a building certificate and development consent for proposed works at a property in Ingleburn. The council had refused to issue a building certificate and to grant development consent. The appellant challenged the council's decisions in the Land and Environment Court. The court was required to determine whether the council's decisions were lawful and whether the appellant had established grounds for the appeal.

The court considered the relevant statutory provisions and the applicable planning schemes and regulations. The court examined the evidence and submissions presented by both parties and considered the legal principles applicable to the issues before it. The court found that the council's decisions were lawful and that the appellant had not established any grounds for the appeal. The court held that the proposed works were not in accordance with the applicable planning schemes and regulations and that the appellant had not demonstrated that the proposed works would not have an unacceptable impact on the environment.

The appeal was dismissed and the applications for a building certificate and development consent were refused. The court found that the council's decisions were based on proper consideration of the relevant planning schemes and regulations and that the appellant had not established any error of law or fact in the council's decisions. The court also found that the appellant had not demonstrated that the proposed works would not have an unacceptable impact on the environment or that the benefits of the proposed works outweighed any potential harm.

Orders

Orders of the court

In matter No 10969 of 2013

(a)The appeal is dismissed.

(b)The application for a Building Certificate for those works at Lot 1 DP 1039153 Zouch Road, Ingleburn included in the application to Campbelltown City Council reference 957/2013/BC-UW dated 6 May 2013 is refused.

In matter No 10970 of 2013

(a)The appeal is dismissed.

(b)Development Application 879/2013 for the construction of a two storey dwelling at Lot 1 DP 1039153 Zouch Road, Ingleburn is determined by the refusal of development consent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Elbaf & Anor v Campbelltown City Council [2014] NSWLEC 1074
Hearing dates:	14 - 15 April 2014
Decision date:	29 April 2014
Jurisdiction:	Class 1
Before:	Morris C
Decision:	In matter No 10969 of 2013 (a)The appeal is dismissed. (b)The application for a Building Certificate for those works at Lot 1 DP 1039153 Zouch Road, Ingleburn included in the application to Campbelltown City Council reference 957/2013/BC-UW dated 6 May 2013 is refused. In matter No 10970 of 2013 (a)The appeal is dismissed. (b)Development Application 879/2013 for the construction of a two storey dwelling at Lot 1 DP 1039153 Zouch Road, Ingleburn is determined by the refusal of development consent.
Catchwords:	Development application for completion of partially completed building; whether a dwelling; siting of structure in relation to setback requirements; Building Certificate
Legislation Cited:	Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Local Government Act 1993; State Environmental Planning Policy (Major Development) 2005 Edmondson Park South; Campbelltown (Urban Area) Local Environmental Plan 2002; Environmental Planning and Assessment Regulation 2000; Civil Procedure Act 2005
Cases Cited:	Dobrohotoff v Bennic [2013] NSWLEC 61; Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094
Texts Cited:	Campbelltown (Sustainable City) Development Control Plan 2013; Development Control Plan 49 - Rural Environmental Protection Subdivision and Dwelling Policy
Category:	Principal judgment
Parties:	Abdulhalim Elbaf Amne Elbaf (Applicants) Campbelltown City Council (Respondent)
Representation:	Mr J Lazarus (Applicants) Mr J Burrell Burrell Solicitors (Applicants) Mr A Seton Marsdens Law Group (Respondent)
File Number(s):	10969 of 2013 10970 of 2013