In an earlier blog dated 15 December 2014 the meaning of a ‘detached studio’ under the SEPP was discussed. The decision in that case cast some light on what structures are considered a ‘detached studio’ for the purposes of complying development.
A subsequent appeal to the Supreme Court has set aside this decision and the applicant has been granted leave to appeal the decision to the Land and Environment Court. The court upheld the appeal on the grounds that the assumption on which the primary judge was invited to act, namely that characterisation of the proposed development as a complying development was not a matter to be determined by the court. The decision of the primary judge was therefore erroneous.
The Appeal
This primary judge’s decision was appealed by the applicant to the Supreme Court in the case of Trives v Hornsby Shire Council [2015] NSWCA 158. The court considered whether the applicant had grounds to appeal the decision handed down by the Land & Environment Court and therefore whether the decision should be set aside and remitted to the Land & Environment Court for a new decision.
Under s85A(10) of the Environmental Planning and Assessment Act 1979, it is expressly provided that there be “no right of appeal against the determination of, or failure or refusal to determine, an application for a complying development certificate”. The court found at [33] that it would be internally inconsistent to confer power to determine fact on a certifier, deny an appeal from that determination but yet intend that the existence of the fact should ultimately be determined by the court. It was held that the primary judge did not have the authority to determine what is ‘complying development’ and that the case be remitted to the Land and Environment Court.
This decision means that the case ofTrives will no longer be able to be relied upon as to what can be considered a ‘detached studio’.
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