The Court held that the Dividing Fences Act 1991 (NSW) does not remove the requirement to obtain development consent under the EP&A Act for the construction of a fence, as the two Acts deal with different subject matters and are not inconsistent. The Court construed cl 2.33(a) of SEPP (Exempt and Complying Development Codes) 2008 such that 'along a common boundary of a lot that contains a heritage item' captures fences built in proximity to and parallel with the boundary of a lot containing a heritage item anywhere on that lot, not merely adjacent to the heritage item itself, thereby excluding such fences from exempt development. The Court also rejected the application of the presumption of regularity to infer that a council had considered and determined the consent status of works that were expressly excluded from the modification application before it, and rejected an estoppel defence where the representation as to the non-requirement for consent originated from the respondent and was characterised as a representation of law rather than fact.
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