Bankstown City Council v Poles

[2009] NSWLEC 147

Land and Environment Court

of New South Wales

CITATION:

Bankstown City Council v Poles [2009] NSWLEC 147

PARTIES:

Bankstown City Council (Applicant)
Abdul Kareem Elishaa Poles (Respondent)

FILE NUMBER(S):

40336 of 2009

CORAM:

Lloyd J

KEY ISSUES:

INJUNCTIONS AND DECLARATIONS :- unauthorised building work - public interest in orderly development and use of land - no defence - order to demolish and remove unauthorised work

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 76A(1)

DATES OF HEARING:

19 August 2009

EX TEMPORE JUDGMENT DATE:

19 August 2009

LEGAL REPRESENTATIVES:

APPLICANT:
M L Wright (barrister)
SOLICITORS:
Marsdens Law Group

RESPONDENT:
In person
SOLICITORS:
N/A

JUDGMENT:

- 1 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Wednesday, 19 August 2009

LEC No. 40336 of 2009

BANKSTOWN CITY COUNCIL v ABDUL KAREM ELISHAA POLES [2009] NSWLEC 147

EX TEMPORE JUDGMENT

1 HIS HONOUR: Mr Abdul Karem Elishaa Poles is the owner of a property known as No. 665 Henry Lawson Drive, East Hills. The Council in these proceedings seeks orders requiring him to demolish and remove unauthorised works constructed at that property. Mr Poles is unrepresented, has a limited understanding of English and has addressed me through an interpreter.

2 When the matter came on for hearing, Mr Poles at first asserted that the evidence in the Council’s affidavits were all lies. He then denied that he had received the affidavits, notwithstanding that there is clear evidence of an affidavit of service upon him of the summons, the points of claim and the Council’s affidavits. After conceding that he had received these documents, Mr Poles continued to assert that they were all lies, even though he had not read them, and even though he had not had them read to him. I have read the affidavits upon which the Council has relied, which I accept, and that I shall now briefly describe.

3 Erected on the land is a two to three storey brick dwelling house. The land is zoned 2(a) Residential under the Bankstown Local Environmental Plan 2001. Under cl 11 of that instrument, dwelling houses are permissible on the land only with development consent. On 19 March 2007, the Council granted development consent for alterations and additions to the first floor of the dwelling on the land. Condition 2 of the development consent required the development to be carried out in accordance with the approved plans. However, Mr Poles carried out building work on the dwelling which was not in accordance with the plans approved, those works being to the front of the first or upper floor of the dwelling, namely a brick parapet, brick columns and windows forming an enclosed balcony, and a metal roof above. On 20 September 2007, Mr Poles lodged a further development application by which he sought to regularise that unauthorised work. On 3 December 2007, the Council granted development consent to the further development application. However, Mr Poles continued to carry out unlawful works to complete the partially completed upper floor extension by providing flashing to the roof structure. On 14 July 2008, the Council required Mr Poles to remove the unauthorised work. On 2 December 2008, the Council’s solicitors sent a letter of demand to Mr Poles requiring him to demolish the unlawful works within 28 days. Mr Poles did not comply with the demand set out in that letter. The unlawful work required development consent and no development consent has been granted by the Council for that work.

4 The carrying out of development without development consent where consent is required is a breach of the Environmental Planning and Assessment Act 1979: s 76A(1). The unlawful work, being work that has not been carried out in accordance with the terms any development consent, is also a breach of the Act: s 76A(1). The Act is an expression by the Parliament of the public interest in the orderly development and use of land. It requires in the normal case that development not be carried out without consent, and in the normal case if there is a consent that it be carried out in compliance with that consent. There is a clear breach of the Act in the present case. There is no reason here to depart from the requirements of the Act.

5 I therefore make the declarations and orders set out in paragraphs one to five inclusive of the summons. The exhibits may be returned.

I hereby certify that the preceding 5 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate



**********