Australia, July 14 -- New South Wales Land and Environment Court issued text of the following judgement on June 13:

1. COMMISSIONER: Proceedings 2024/474684 are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Canterbury-Bankstown Council's (Council) refusal of Development Application No. DA 13162024 (DA) for the proposed constructions of a 1.2m high front fence, a balustrade adjoining the driveway, planter boxes at the entrance of the property and landscaping in the front setback; landscaping along the southern side boundary, reduction of fill along the north-west and south-west side boundaries; and to grant consent to the use of the existing basement in relation to Lot 13 in Deposited Plan 35350 known as 7 Attunga Avenue Earlwood NSW (Site).

2. On 30 January 2025 the Court made an order for the following proceedings to be heard and determined together:

1) Proceedings 2024/252180 being an appeal against Council's Development Control Order dated 11 June being a Stop Work Order (Order No. 2 in Sch 5, Pt 1 of s 9.34(1)(a) of the EPA Act) (DCO). The appeal was brought pursuant to s 8.18(1) of the EPA Act, and the power or function to be exercised by the Court is pursuant to s 8.18(4) of the EPA Act (DCO Proceedings).

2) Proceedings 2024/474656 being an appeal against Council's refusal of Building Information Certificate No. BC-127/2024 (BIC) lodged with Council on 17 October 2024 (BIC Proceedings). The appeal was brought pursuant to s 8.25(1)(a) of the EPA Act and the power or function to be exercised by the Court is pursuant to s 8.25(3) of the EPA Act.

3) These proceedings being the DA Proceedings. The power or function to be exercised by the Court in determining the proceedings is ss 4.16(1) of the EPA Act.

3. All three proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

4. The Site is owned by the Applicant.

5. The Applicant is in the process of building a dwelling on the Site pursuant to the issue of a Complying Development Certificate 042/2023 on 6 June 2023 (CDC) pursuant to s 4.26(1)(a) of the EPA Act. The CDC permitted the demolition of existing dwelling house and construction of a double storey dwelling, basement parking, inground swimming pool, landscaping and associated work on the Site.

6. During the construction process the Applicant exceeded dwelling as set out in the approved CDC plans (s 4.3(1)(b) of the EPA Act).

7. On 11 June 2024 pursuant to s 9.34(1)(a) Sch 5 Pt 1 Order 1 of the EPA Act Council issued the Applicant with the DCO requiring the Applicant to Stop Work at the Site.

8. On 9 July 2024, pursuant to s 8.18(1)(a) and (3)(a) of the EPA Act the Applicant lodged the appeal against the DCO within the statutory period of 28 days.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1975c95c159889c2648cf238)

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