Vigor Master Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1110

Land and Environment Court New South Wales

Medium Neutral Citation: Vigor Master Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1110 Hearing dates: 22 – 23 January 2019 and 20 February 2019 Date of orders: 21 March 2019 Decision date: 21 March 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders that: (1) In terms of Modification Application DA/543/2012/D for the construction of affordable rental housing containing two dwellings at Lots 16 and 17 in DP 2706309, being 6A and 6 Maroota Way, Beecroft respectively; (a) Leave is granted for the applicants to amend the application in accordance with condition 1 of the revised conditions of consent at Annexure "A". (b) The appeal is upheld subject to the conditions in Annexure "A". (2) In terms of building certificate application number BC/15/2017 for dwellings at Lots 16 and 17 in DP 2706309, being 6A and 6 Maroota Way, Beecroft respectively; (a) Leave is granted for the applicants to amend the application in accordance with revised plans 6M0119 – B000, B103, B104, B105, B106, B202, B203, B204, B205, B206, D000, D103, D104, D105, D202, D203, D204 and D205, all Revision 2 and dated 01/02/2019, with associated schedule of works. (b) The appeal is upheld. (c) Hornsby Shire Council is directed, pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, to issue a building information certificate in respect of the dwellings at 6 and 6A Maroota Way, Beecroft upon the satisfaction of the Council that the conditions in Annexure "B" have been met within 180 days of these orders. (3) In relation to both appeals, the exhibits are returned other than Exhibits A, B, 1 and 6. Catchwords: APPEALS: approved affordable rental housing dwellings – unauthorised works to dwellings sought to be regularised – modification application to amend existing consent to retain some unauthorised works – approved use now prohibited but has existing use rights – whether modifications result in substantially the same development – whether compatible with character of local area – compliance with the National Construction Code – capacity to be used as additional dwellings – amenity impacts – building information certificate to issue to reflect approved modification – neighbour objections Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment Regulation 2000 Hornsby Local Environmental Plan 2013 Hornsby Shire Local Environmental Plan 1994 State Environmental Planning Policy (Affordable Rental Housing) 2009 Texts Cited: Building Code of Australia Hornsby Development Control Plan 2014 National Construction Code Category: Principal judgment Parties: Vigor Master Pty Ltd (First Applicant) Zhen Zi (Second Applicant) Ke Li (Third Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: J Doyle (Applicants) H Irish (Respondent)