Macaulay v Bayside Council [2019] NSWLEC 1568

Land and Environment Court New South Wales

Medium Neutral Citation: Macaulay v Bayside Council [2019] NSWLEC 1568 Hearing dates: Conciliation conference on 12 November 2019 Date of orders: 21 November 2019 Decision date: 21 November 2019 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders that: (1) The appeal is upheld. (2) Pursuant to s 8.18(4)(c) of the Environmental Planning and Assessment Act 1979, the Court makes the Order set out in Annexure "A" in substitution of the Development Control Order issued by the Council to the Respondent dated 22 January 2019. Catchwords: ORDERS – unauthorised attic construction – compliance with National Construction Code – Building Code of Australia Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Texts Cited: National Construction Code – Building Code of Australia Category: Principal judgment Parties: Marie Marlene Macaulay (Applicant) Bayside Council (Respondent) Representation: Counsel: A Miranda (Solicitor) (Applicant) P Brown (Solicitor) (Respondent)

Solicitors: Pryor Tzannes & Wallis (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/56891 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against a General Order (the Order) issued by Bayside Council (the Council). The application seeks to have to have the Order dismissed and the applicant be granted leave to obtain a building certificate with respect to the installation of the dormer windows the subject of the Order. 2. The Order that is the subject of the appeal was issued by the Council on 22 January 2019 and is in two parts. 3. The first is an Order No 3 under Schedule 5, Part 4, Clause 5. It requires the applicant to: "Demolish all dormer windows within the roof line." 1. The reasons for the Order are: 1. The installation of the unauthorised dormer windows has been carried out without prior development consent of Council in a case where prior development consent and construction certificate are required. 2. The unauthorised installation of the dormer windows may be detrimental to the amenities of adjoining property owners, the future occupants of the building and the environment. 3. The installation of the unauthorised dormer windows have altered the roof angles and lining without prior consent from a consent authority where prior approval is required. 4. The works, both internal and external, undertaken do not fall within the specified development controls under the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 1. The second part of the Order is an Order No 10 and requires the applicant to restore the premises to the condition that they were previously approved. 2. The reasons for that part of the Order are: 1. Unauthorised works have been undertaken without any consent where prior consent from a consent authority is required. 2. It is unknown as to the building standards and compliance with the Building Code of Australia. 3. Addition of extra room in the roof cavity requires structural engineering certification. It is unknown whether structural adequacy is achieved in these alterations and additions carried out upon this residence. 4. The works, both internal and external, undertaken do not fall within the specified development controls under the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.