Wallis v Hornsby Shire Council [2012] NSWLEC 1029

Land and Environment Court New South Wales

Medium Neutral Citation: Wallis v Hornsby Shire Council [2012] NSWLEC 1029 Hearing dates: 2 February 2012 Decision date: 16 February 2012 Jurisdiction: Class 1 Before: Fakes C; O'Neill C Decision: Appeal dismissed; date for compliance amended; order modified to include conditions of consent Catchwords: SECTION 121B ORDER: Order no. 15 to comply with development consent; addition as built is not in accordance with approved plans. Legislation Cited: Environmental Planning & Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 Environmental Planning and Assessment Regulations 2000 Cases Cited: Wallis v Hornsby Council [2006] NSWLEC 122 Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251 Category: Principal judgment Parties: Mr Y Wallis (Applicant) Hornsby Shire Council (Respondent) Representation: Applicant: Mr Y Wallis (Litigant in person) Respondent: Mr I Woodward (Solicitor) Respondent: Storey & Gough Lawyers File Number(s): 10572 of 2011

Judgment 1COMMISSIONERS: This is an appeal under s 121ZK of the Environmental Planning & Assessment Act 1979 (the Act) against Order No. 15 - to comply with development consent, made by Hornsby Shire Council under s 121B of the Act. 2The order made on 1 June 2011 requires Mr Wallis, as the owner of 2 Schofield Parade Pennant Hills (Lot 3 DP 209830), do the following within 60 days of the date of the order: SCOPE OF WORKS 1. Modify the building by reducing its size to comply with the plans approved under DA/89/2007/B. 3The reasons for the order are summarised as: * The building has not been constructed in accordance with the approved plans; * The floor space ratio of 0.46:1 exceeds the permitted maximum FSR of 0.4:1; * The southern elevation of the upper floor is 1.45m closer to the southern boundary of the property which has increased the level of overshadowing of the adjoining properties - 73 and 73A Laurence Street; * The overshadowing does not comply with the controls in council's Dwelling House Development Control Plan; and * Previous refusals by council and the Court on the grounds of overshadowing. 4While the application to the Court does not state the orders sought, it was elicited from Mr Wallis during the hearing that he asks the order be revoked. 5The basis of the Mr Wallis' position appears to be that: the original plans approved by council were incorrectly drawn by the architect; the applicant was not the owner of the building when the additions were constructed; the council should have identified the non-compliance earlier; he has not had any complaints from his neighbours since the completion of the works; and being a pensioner, he is unable to afford the cost of rebuilding (which he estimates to be $300,000) and would rather be fined or go to gaol. We note that the applicant did not put on any evidence to support his position.