Event and Time
Event Description
In this case, the applicant (property owner) faced a Development Control Order (DCO) issued by the respondent (enforcement authority) regarding unauthorized construction on a site zoned R2 Low Density Residential under the Willoughby Local Environmental Plan 2012 (WLEP). The applicant had built masonry walls above an existing garage without consent, which the respondent claimed created various issues, leading to the issuance of the DCO on May 23, 2023.
Application and Claims
- Applicant's Claims:
- The applicant initiated Class 1 proceedings under the Environmental Planning and Assessment Act 1979 (EPA Act) against the DCO, contesting its legality and the specific requirements imposed.
- Respondent's Claims:
- The respondent maintained that: - The constructed masonry walls were unauthorized and constituted unlawful structures. - The structures were incompatible with the locality's character, failed to meet setback and height performance criteria, and created amenity impacts on neighboring properties. - Safety concerns existed due to the structures’ “climbability” and potential for objects to pass through gaps.
Judicial Decisions
The Court upheld the appeal against the DCO and agreed to substitute the original order with a new development control order. This new order mandated:
- Partial demolition of the western masonry wall to align its height with that of the northern wall.
- Painting of the external walls.
- Increasing the height of the Internal Western Wall to meet safety standards outlined in the National Construction Code for balustrades.
Dispute Points and Legal Basis
Dispute Points
- Applicant's Defense:
- Contended that the walls, though constructed without formal consent, should have been assessed under a different set of criteria. - Argued that the DCO was overly onerous and disproportionate relative to the alleged violations.