Griffis v Tweed Shire Council - [2011] NSWLEC 1126

Land and Environment Court

New South Wales

Medium Neutral Citation: Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126
Hearing dates: 4 November 2010
Decision date: 10 March 2011
Jurisdiction: Class 1
Before: Moore SC
Decision:
Matter No 10535 of 2010
(1) The applicants are to complete, within 30 days of the date of this decision, the external cladding of the building to render it vermin proof and to complete the internal lining in the bathroom;
(2) The applicants are notify the respondent and the Court, within 35 days of the date of this decision, that they have completed the external cladding of the building to render it vermin proof and have completed the internal lining in the bathroom;
(3) The respondent is directed to inspect the building and file and serve any certificate of satisfaction or otherwise with the works in (1) within 10 days of being notified pursuant to (2) that these works have been completed;
(4) The applicants are to file and serve all outstanding certificates, including a structural engineer's certificate certifying that the shed is structurally adequate, within 45 days of the date of this decision;
(5) Liberty to re-list Matter No 10763 of 2010 before me on two days notice concerning any matters arising out of directions (1) to (4);
(6) If the parties comply with directions (1) to (4) and there are no matters requiring re-listing pursuant to those directions, orders will be made in chambers upholding the appeal and ordering the respondent to issue a building certificate to the applicants within 28 days of the date of those orders; and
(7) If the applicants do not comply with (1), (2) or (4) or exercise the liberty to re-list in (5), within 10 days of service of any certificate issued by the respondent concerning the works in (1), any dispute concerning any such certificate, the appeal in Matter No 10763 of 2010 will be dismissed without further reference to the parties.
Matter No 10763 of 2010
(1) The appeal is dismissed;
(2) Development Application DA08/1056 for approval of the use as a rural worker's dwelling of part of the shed structure constructed pursuant to Development Consent DA06/0827 is determined by refusal of development consent; and
(3) The exhibits, other than Exhibits 1, 2, A and B, are returned.

Catchwords: BUILDING CERTIFICATE APPLICATION; incomplete works; conversion of portion of a rural shed into a dwelling; need for structural and other certification.
DEVELOPMENT APPLICATION; proposed use of a rural shed as a rural worker's dwelling; second dwelling on a rural property; consistency with zone objectives; satisfaction of exception in Local Environmental Plan to permit a rural worker's dwelling; meaning of words "employment" and "employed" in the exception.
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
Tweed Local Environmental Plan 2000
Tweed Local Environmental Plan 2009
Cases Cited: Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285
Pancho Properties Pty Ltd v Wingecarribee…

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: [2011] NSWLEC 1126
Decision Date: 10 March 2011

CaseChat Overview and Summary

Griffis v Tweed Shire Council involved the applicants seeking a building certificate for a shed conversion into a dwelling, which the council had refused. The applicants appealed the council's decision to the Land and Environment Court of New South Wales. The applicants argued that the council's refusal was unlawful and sought an order compelling the council to issue a building certificate. The council contended that the building did not comply with the relevant planning and building codes, and that the development application should be refused.

The court had to determine whether the council's refusal to issue a building certificate was lawful and whether the development application should be approved or refused. The court examined the planning and building laws applicable to the case, including the Environmental Planning and Assessment Act 1979 and the Building Code of Australia. The court also considered the evidence and arguments presented by both parties.

The court found that the council's refusal to issue a building certificate was lawful because the building did not comply with the relevant planning and building codes. The court also found that the development application should be refused because the proposed use of the shed as a dwelling was not permissible under the relevant planning instruments. The court ordered the applicants to complete certain works to make the building vermin proof and to file and serve outstanding certificates within specified timeframes. If the applicants complied with these orders, the court would uphold the appeal and order the council to issue a building certificate. If the applicants did not comply, the appeal would be dismissed.

The court dismissed the appeal, refused the development application, and ordered the applicants to complete certain works and file and serve outstanding certificates within specified timeframes. The court also ordered the exhibits, other than certain ones, to be returned.

Orders

Orders of the court

Matter No 10535 of 2010

(1) The applicants are to complete, within 30 days of the date of this decision, the external cladding of the building to render it vermin proof and to complete the internal lining in the bathroom;

(2) The applicants are notify the respondent and the Court, within 35 days of the date of this decision, that they have completed the external cladding of the building to render it vermin proof and have completed the internal lining in the bathroom;

(3) The respondent is directed to inspect the building and file and serve any certificate of satisfaction or otherwise with the works in (1) within 10 days of being notified pursuant to (2) that these works have been completed;

(4) The applicants are to file and serve all outstanding certificates, including a structural engineer's certificate certifying that the shed is structurally adequate, within 45 days of the date of this decision;

(5) Liberty to re-list Matter No 10763 of 2010 before me on two days notice concerning any matters arising out of directions (1) to (4);

(6) If the parties comply with directions (1) to (4) and there are no matters requiring re-listing pursuant to those directions, orders will be made in chambers upholding the appeal and ordering the respondent to issue a building certificate to the applicants within 28 days of the date of those orders; and

(7) If the applicants do not comply with (1), (2) or (4) or exercise the liberty to re-list in (5), within 10 days of service of any certificate issued by the respondent concerning the works in (1), any dispute concerning any such certificate, the appeal in Matter No 10763 of 2010 will be dismissed without further reference to the parties.

Matter No 10763 of 2010

(1) The appeal is dismissed;

(2) Development Application DA08/1056 for approval of the use as a rural worker's dwelling of part of the shed structure constructed pursuant to Development Consent DA06/0827 is determined by refusal of development consent; and

(3) The exhibits, other than Exhibits 1, 2, A and B, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126
Hearing dates:	4 November 2010
Decision date:	10 March 2011
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	Matter No 10535 of 2010 (1) The applicants are to complete, within 30 days of the date of this decision, the external cladding of the building to render it vermin proof and to complete the internal lining in the bathroom; (2) The applicants are notify the respondent and the Court, within 35 days of the date of this decision, that they have completed the external cladding of the building to render it vermin proof and have completed the internal lining in the bathroom; (3) The respondent is directed to inspect the building and file and serve any certificate of satisfaction or otherwise with the works in (1) within 10 days of being notified pursuant to (2) that these works have been completed; (4) The applicants are to file and serve all outstanding certificates, including a structural engineer's certificate certifying that the shed is structurally adequate, within 45 days of the date of this decision; (5) Liberty to re-list Matter No 10763 of 2010 before me on two days notice concerning any matters arising out of directions (1) to (4); (6) If the parties comply with directions (1) to (4) and there are no matters requiring re-listing pursuant to those directions, orders will be made in chambers upholding the appeal and ordering the respondent to issue a building certificate to the applicants within 28 days of the date of those orders; and (7) If the applicants do not comply with (1), (2) or (4) or exercise the liberty to re-list in (5), within 10 days of service of any certificate issued by the respondent concerning the works in (1), any dispute concerning any such certificate, the appeal in Matter No 10763 of 2010 will be dismissed without further reference to the parties. Matter No 10763 of 2010 (1) The appeal is dismissed; (2) Development Application DA08/1056 for approval of the use as a rural worker's dwelling of part of the shed structure constructed pursuant to Development Consent DA06/0827 is determined by refusal of development consent; and (3) The exhibits, other than Exhibits 1, 2, A and B, are returned.
Catchwords:	BUILDING CERTIFICATE APPLICATION; incomplete works; conversion of portion of a rural shed into a dwelling; need for structural and other certification. DEVELOPMENT APPLICATION; proposed use of a rural shed as a rural worker's dwelling; second dwelling on a rural property; consistency with zone objectives; satisfaction of exception in Local Environmental Plan to permit a rural worker's dwelling; meaning of words "employment" and "employed" in the exception.
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards Tweed Local Environmental Plan 2000 Tweed Local Environmental Plan 2009
Cases Cited:	Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 Pancho Properties Pty Ltd v Wingecarribee…