ES Engineering and Design v Bayside Council [2021] NSWLEC 1312

Land and Environment Court New South Wales

Medium Neutral Citation: ES Engineering and Design v Bayside Council [2021] NSWLEC 1312 Hearing dates: 28-29 April 2021 Date of orders: 1 June 2021 Decision date: 01 June 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders are at [87]. Catchwords: DEVELOPMENT APPLICATION – use of unauthorised works being a secondary dwelling and garage – consistency with character and context – visual privacy – bulk and scale – landscaping BUILDING INFORMATION CERTIFICATE – regularise unauthorised works and propose new works – bulk and scale – character – visual amenity Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.4, 4.15, 4.16, 4.69, 6.25, 6.26, 8.7, 8.25 Rockdale Local Environmental Plan 2011, cl 2.3 Swimming Pools Act 1992 Texts Cited: Building Code of Australia Rockdale Development Control Plan 2011 Category: Principal judgment Parties: ES Engineering and Design (Applicant) Bayside Council (Respondent) Representation: Counsel: M Seymour (Applicant) P Brown (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2020/56714 & 2020/56722 Publication restriction: No

Judgment 1. COMMISSIONER: The Development Application (DA) 2019/43 appeal (2020/56714) is against refusal by Bayside Council (hereafter the Council), for the use of unauthorised works on Lot 2 DP 544171, also known as 53 Oliver Street, Bexley North (hereafter the site). 2. Also considered by the Court, is the appeal (2020/56722) against the refusal of a Building Information Certificate (BIC) application 2018/49 by Council, which seeks to regularise the unauthorised works (identified in the DA). The BIC, as amended seeks to install permeable paving along the driveway, timber bridge/decking, fence screening and a roller door, as described in Exhibit K. 3. The two appeals are interrelated in their contentions and consideration of the works not lawfully commenced. Therefore, the appeals are considered together, although separately determined below.