Webb (Pamela) v Baulkham Hills Shire Council

[2005] NSWLEC 135

Land and Environment Court

of New South Wales

CITATION:

Webb (Pamela) v Baulkham Hills Shire Council [2005] NSWLEC 135

PARTIES:

APPLICANT
Pamela Webb

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

11160 of 2004

CORAM:

Nott C

KEY ISSUES:

Development Consent :- council's order requiring compliance with a condition that a former dwelling house be rendered uninhabitable - order revoked

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 121B

CASES CITED:

Webb (Graeme and Pamela) v Baulkham Hills Shire Council [2005] NSWLEC 80.

DATES OF HEARING:

13 December 2004 and subsequent written submissions in related [2005] NSWLEC 80

 
DATE OF JUDGMENT: 

04/01/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C W McEwen, SC
SOLICITORS
Robilliard & Robilliard

RESPONDENT
Mr N D Howie, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

In THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

1 April 2005

11160 of 2004: Pamela Dawn Webb v Baulkham Hills Shire Council

JUDGMENT

1 This is an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 in respect of an order given by the council under s 121B requiring a building on 19 Glenhaven Road, Glenhaven, to be “rendered non-habitable” so as to comply with condition 34 of a development consent and building permit 1290/97 (“the earlier consent”).

2 This appeal was listed for hearing with appeal 11018 of 2004, in respect of which I delivered judgment today and granted development consent for a subdivision which, when registered, would result in the building on 19 Glenhaven Road being on a separate lot from the new house that was erected pursuant to the earlier consent: Webb (Graeme and Pamela) v Baulkham Hills Shire Council [2005] NSWLEC 80.

3 At the time of my inspection of the building on No. 19, the building was vacant and no longer used as a dwelling. A condition of the development consent for the subdivision that I approved in appeal 11018 of 2004 is that the earlier consent is to be modified by deleting condition 34 and substituting a new condition 34 to the effect that the building on No. 19 must not be used as a dwelling house unless and until a new development consent is granted for that purpose. The modified condition 34 would mean that the existing kitchen in the vacant building would not have to be ripped out. This kitchen could serve as a meal-preparation room for some future approved use, such as a childcare centre (which was one of the previous uses approved for the building). Moreover, once the subdivision that was approved in appeal 11018 of 2004 is registered, it would then be open to the council to grant development consent to a new development application to use the building as a dwelling house.

4 It seems to me that it was reasonable for the council to issue the order under s 121B. However, now that development consent has been granted in appeal 11018 of 2004, I am of the opinion that the order should be revoked.

5 Prima facie, the council would be entitled to costs that are solely related to the present appeal 11160 of 2004, but probably not including any costs the council would have incurred in any event in contesting appeal 11018 of 2004. However, the parties may come to an agreement about costs, and at this stage without hearing further from the parties or making any definite decision, I will simply reserve costs in appeal 11160 of 2004.

6 Accordingly, the orders of the Court are:

1. The appeal is upheld.
2. The council's order under s 121B of the Environmental Planning and Assessment Act 1979 dated 31 August 2004 in respect of 19 Glenhaven Road, Glenhaven, is revoked.
3. Costs are reserved.

__________
A J Nott
Commissioner of the Court