Taylor v Bathurst Regional Council

[2012] NSWLEC 1140

Land and Environment Court

New South Wales

Medium Neutral Citation:	Taylor v Bathurst Regional Council [2012] NSWLEC 1140
Hearing dates:	30 April 2012
Decision date:	25 May 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeals upheld subject to conditions
Catchwords:	DEVELOPMENT APPLICATION: change of use; building certificate
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Interim Development Order No. 1 - Shire of Evans 1980 Bathurst Regional (Interim) Local Environmental Plan 2005 State Environmental Planning Policy (Rural Lands)
Cases Cited:	Ireland v Cessnock City Council [1999] NSWLEC 153 Ireland v Cessnock City Council [1999] NSWLEC 250 Dach v Kiama Council [2007] NSWLEC 316 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Thorncraft & Anor v Bathurst Regional Council & Anor [2005] NSWLEC 571 Goldin v The Minister for Transport and the Minister Administering the Waterways Legislation [2002] NSWLEC 75; [2002] 121 LGERA 101
Category:	Principal judgment
Parties:	Applicant: James Patrick Taylor Respondent: Bathurst Regional Council
Representation:	Applicant: Mr T Cork (solicitor) Respondent: Mr P Crennan (Solicitor) Applicant: McPhee Kelshaw Respondent: Crennan Legal
File Number(s):	10052; 10053 of 2012

Judgment

1. COMMISSIONER: This judgment concerns two appeals lodged by Mr Taylor against decisions made by Bathurst Regional Council. The first appeal relates to council's refusal to grant consent for the use of an existing building at 2 Robertson Place Rockley as a dwelling (development application DA2010/0937). The second and related appeal is against council's refusal to issue a building certificate for works undertaken on the building at 2 Robertson Place.

1. These proceedings are brought pursuant to s 97 and s 149F (respectively) of the Environmental Planning and Assessment Act 1979 (the Act).

Relevant background

1. In 1990, the former Evans Shire Council approved a development application (EDA 1989/0103) for a proposed development stated as "erection of workshop and timber storage shed" with the proposed use of the building being "furniture manufacturing". The approved plans show extensions to an existing previously approved shed; the additions being a 'timber store' at the western end, a 'finishing hall' at the eastern end, and an attached annex on the northern side comprising staff lounge, toilets, office and drawing office. The factory employed up to seven people.

1. The furniture manufacturing business went into liquidation. In 2004, Mr Taylor purchased the land on which the building stands (Lot 238) as well as two associated smaller lots (Lots 8 and 9). The liquidator of the furniture company issued the contract of sale.

1. The contract of sale included a s 149 certificate issued by Evans Shire Council which indicates a building entitlement was available on the lot.

1. Mr Taylor's evidence is that prior to his purchase of the land, the former owner used part of the building, the northern extension (staff/ office facilities) as a dwelling.

1. Following his purchase of the building, and unaware of the obligation to obtain council permission, Mr Taylor carried out a number of internal extensions and alterations to enlarge the portion of the shed used as a dwelling.…