Ajvadi v Wicks (No 2)

[2024] NSWLEC 44

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ajvadi v Wicks (No 2) [2024] NSWLEC 44

Hearing dates:

1 May 2024

Date of orders:

1 May 2024

Decision date:

02 May 2024

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [46].

Catchwords:

CIVIL ENFORCEMENT: development without consent – whether declaratory relief should be granted – whether demolition or other remediation should be ordered.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.2, 9.45

Cases Cited:

Ajvadi v Wicks [2023] NSWLEC 145

Friends of Glebe Wetlands Incorporated v Littlewoods Civil Contracting Pty Ltd [2022] NSWLEC 21

Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1

Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6

PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40

Sader v Elgammal (No 2) [2024] NSWLEC 4

Warringah Shire Council v Sedevic (1987) 10 NSWLR 335

Wollongong City Council v Matthew Dominic Fikkers [2023] NSWLEC 52

Category:

Principal judgment

Parties:

Fayavar Ajvadi (First Applicant)
Shohreh Rezai (Second Applicant)
Michael Wicks (First Respondent)
Northern Beaches Council (Second Respondent)

Representation:

Counsel:
M Seymour SC (First and Second Applicants)
N Hammond (First Respondent)
Submitting Appearance (Second Respondent)

Solicitors:
Addisons (First and Second Applicants)
Hones Lawyers (First Respondent)
Wilshire Webb Staunton Beattie (Second Respondent)

File Number(s):

2022/333225

Publication restriction:

N/A

JUDGMENT

Development is Carried Out Without Consent

1. These proceedings (commenced in Class 4 of the Court’s jurisdiction) concern what relief, if any, should be granted in the exercise of the Court’s discretion pursuant to a concession by the first respondent, Michael Wicks, that he carried out development without the necessary development consent in breach of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (“the EPAA”).

2. The proceedings were initiated by the applicants, Dr Fayavar Ajvadi and Dr Shohreh Rezai, whose property was impacted by the unlawful works.

3. The second respondent, the Northern Beaches Council (“the Council”), filed a submitting appearance.

4. The active parties to the proceedings have agreed, following extensive negotiation, on the practical remediation that should be carried out by Wicks to rectify his illegal activity. This agreement was reflected in proposed consent orders which the parties requested that the Court make. The Court made those orders when the matter came before it for hearing, with reasons to be delivered later. These are those reasons.

Wicks Builds a Retaining Wall

5. The facts giving rise to this hearing were contained in an agreed statement of facts and in an affidavit of Peter Clarke, affirmed 30 April 2024, together with exhibits. Clarke is Wicks’s solicitor.

6. Wicks is the owner and occupier of 40 Castle Circuit, Seaforth (“No 40”). The applicants are the owners of 42 Castle Circuit, Seaforth (“No 42”). The applicants do not occupy No 42, it is occupied by their relatives.

7. In January and February 2021, Wicks caused works to be commenced and carried out on No 40, which involved the removal of vegetation,…