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
Campbelltown City Council (Respondent)
Amne Elbaf (Applicants)Representation: Mr J Lazarus (Applicants)
Mr A Seton
Mr J Burrell
Burrell Solicitors (Applicants)
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…
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- Case
- [2014] NSWLEC 1074
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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