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Ireland v Cessnock City Council

Ireland v Cessnock City Council

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Reported Decision: 110 LGERA 311

Land and Environment Court

of New South Wales

CITATION:

Ireland V Cessnock City Council [1999] NSWLEC 250

PARTIES

APPLICANTS:
Ireland

RESPONDENT:
Cessnock City Council

NUMBER:

10170 of 1999

CORAM:

Bignold J

KEY ISSUES:

Development :- Development:-Development appeal, building erected unlawfully. Applications for building certificate and development consent for use of the building effect of status of building as an unlawful building.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 149F, s 97

DATES OF HEARING:

10/18/1999; 10/28/1999

DATE OF JUDGMENT DELIVERY:

11/12/1999

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr G. Newport, Barrister
SOLICITORS:
Lorton Duke
RESPONDENT:
Mr J.B. Blackman, Barrister
SOLICITORS:
Cleaves Mallik & Gibbs

JUDGMENT:

TABLE OF CONTENTS

A. INTRODUCTION 1-8
B. DESCRIPTION OF THE SUBJECT BUILDING AND ITS PHYSICAL
AND PLANNING CONTEXTS 9-28
C. SHOULD A BUILDING CERTIFICATE BE ISSUED? 29-41
D. SHOULD DEVELOPMENT CONSENT BE GRANTED? 42-47
E. CONCLUSIONS AND ORDERS 48

IN THE LAND AND Matter No . 10170 and 2003 of 1999

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 12 November 1999

P. C. AND P. IRELAND

Applicants

CESSNOCK CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. These are two related proceedings (which by consent were heard together) relating to a building erected on a 15 ha parcel of rural land situate at Pokolbin, having been so erected either without the necessary development consent and building approval having been obtained therefor, or (more probably) contrary to the terms of the necessary development consent and building approval. That unlawful status of the building is founded upon declarations made by this Court in class 4 enforcement proceedings (matter No 40073 of 1998) brought by the Council against the present Applicants. The relevant declarations and consequential orders are set forth in the reasons for judgment of Sheahan J published on 9 October 1998.

2. In the present proceedings, the Applicants appeal to this Court against the decisions of the Council made in respect of two related applications under the Environmental Planning and Assessment Act 1979 made to the Council by the Applicants following his Honour’s judgment.

3. Those applications were made in an obvious attempt by the Applicants to “regularise” what Sheahan J had described as the “planning law position in relation to the building to their (ie the parties’) mutual satisfaction”: vide par 55 of his Honour’s judgment. His Honour stayed the mandatory order for demolition of the building to provide an opportunity for the planning law position to be so regularised: vide Order 5. By consent of the parties that stay has been extended until judgment is delivered in the present appeals.

4. The two related proceedings involve:
(i.) an appeal pursuant to the EP&A Act s 149F against the Council’s refusal to issue a building certificate in respect of the building; and
(ii.) an appeal pursuant to the EP&A Act s 97 against the Council’s deemed refusal of a development application for the use of the building as a farm shed for motor…

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: [1999] NSWLEC 250
Decision Date: 12/11/1999

CaseChat Overview and Summary

The case of Ireland v Cessnock City Council involved an appeal against the Council's decisions to refuse a building certificate and development consent for a building erected on rural land at Pokolbin. The applicants, Ireland, sought to regularise the unlawful status of the building, which was founded upon declarations made by the Court in previous enforcement proceedings. The key legal issues were whether a building certificate should be issued and whether development consent should be granted for the proposed use of the building as a farm shed for motor vehicles, farm and winery equipment.

The Court found that the building was structurally sound and that had the applicants sought the necessary development consent and building approval, those approvals would probably have been granted. The Court also found that the Applicants had already been punished for their wrongdoing and had incurred significant costs in seeking to regularise the planning law position. The Court granted the appeal and directed the Council to issue a building certificate without imposing any terms or conditions. The Court also granted development consent for the proposed use of the building as a farm shed, subject to certain conditions.

The final orders of the Court were that the appeal against the refusal to issue a building certificate be upheld, and the Council was directed to issue a building certificate without imposing any terms or conditions. The appeal against the refusal of development consent was also allowed, and development consent was granted subject to certain conditions, including that the existing building was not to be used for habitable occupation, the use of the building as a farm shed shall remain ancillary to the overall operation of the site, and no hazardous or offensive chemicals or materials shall be stored within the building.

Orders