Camden Council v Rafailidis - [2012] NSWLEC 51

Land and Environment Court

New South Wales

Medium Neutral Citation: Camden Council v Rafailidis [2012] NSWLEC 51
Hearing dates: 05/03/2012
Decision date: 05 March 2012
Jurisdiction: Class 4
Before: Lloyd AJ
Decision:
1.The Court declares that in breach of section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 the Respondents have carried out development otherwise than in accordance with the Notice of Determination of Development Application No. 701/2008 dated 22 October 2010 for the proposed development at Lot 10, Deposited Plan 27602, 955 Camden Valley Way Catherine Field New South Wales 2750.
2.Order pursuant to section 124 of the Act that the Respondents are within ninety (90) days to demolish and remove the existing single storey dwelling on the Property, or otherwise obtain an appropriate development consent to allow it to remain in some form or another.
3.As alternative to Order No 2, an order pursuant to section 124 of the Act that the Respondents are:
(a) within fourteen (14) days to lodge a development application with the Applicant for the demolition and removal of the existing single storey dwelling on the Property; and
(b) to demolish and remove the existing single storey dwelling within ninety (90) days of the granting of consent to the Development Application in accordance with such consent.
4. The Respondents are to pay the Applicant's costs of the proceedings.
5. The exhibits may be returned.

Catchwords: CIVIL ENFORCEMENT - non-compliance with conditions of development consent - appropriate relief
Legislation Cited: Camden Local Environmental Plan No. 48
Camden Local Environmental Plan 2010
Environmental Planning and Assessment Act 1979
Local Government Act 1993
Category: Principal judgment
Parties: Camden Council (Applicant)
Efrem Rafailidis (First Respondent)
Koula Rafailidis (Second Respondent)
Representation: M Bonanno (Sol) (Applicant)
First and second Respondents in person
Lindsay Taylor Lawyers (Applicant)

File Number(s): 40855 of 2011
Publication restriction: Nil

EXTEMPORE Judgment

The applicant, Camden Council, seeks to enforce compliance with a development consent granted by it on 22 October 2008.

The relevant facts may be briefly described. By a notice of determination dated 22 October 2008 the council granted development consent to the respondents, Mr E Rafailidis and Mrs K Rafailidis, for the erection of a new dwelling at 955 Camden Valley Way Catherine Fields. There had been a previous development consent for a new dwelling which had been granted on 28 February 2006. The respondents have erected the new dwelling pursuant to the second development consent.

There was, and still is, an existing fibro dwelling on the land. The development application lodged by the respondents on or about 5 August 2008 contains a statement of environmental effects which relevantly states:

The property is currently occupied with a single storey fibroclad dwelling which will be removed on completion of the new home.

Moreover, a letter to the council accompanying the development application by Masterton Homes, dated 5 August 2008, contains the following statement:

With regards to our development application being lodged to council please be advised that the existing fibroclad dwelling will remain on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Camden Council v Rafailidis

Details

AGLC: Camden Council v Rafailidis [2012] NSWLEC 51
Case: [2012] NSWLEC 51
Decision Date: 05 March 2012

CaseChat Overview and Summary

Camden Council brought an action against the Rafailidis family, who own a property at Lot 10, Deposited Plan 27602, 955 Camden Valley Way Catherine Field, alleging that the respondents had carried out development contrary to the Notice of Determination of Development Application No. 701/2008 dated 22 October 2010. The Council sought a declaration that the respondents had breached section 76A(1)(b) of the Environmental Planning and Assessment Act 1979, and that they be ordered to demolish the single storey dwelling on the property within ninety (90) days, or alternatively, to obtain an appropriate development consent to allow it to remain in some form or another. The respondents argued that they had acted in accordance with the Notice of Determination, and that the Council had not provided sufficient evidence to support its claims.

The court considered the evidence presented and found that the respondents had indeed carried out development contrary to the Notice of Determination. The court held that the respondents had breached section 76A(1)(b) of the Environmental Planning and Assessment Act 1979, and ordered that they be within ninety (90) days to demolish and remove the existing single storey dwelling on the property, or otherwise obtain an appropriate development consent to allow it to remain in some form or another. Alternatively, the court ordered that the respondents must within fourteen (14) days to lodge a development application with the Council for the demolition and removal of the existing single storey dwelling on the property, and to demolish and remove the existing single storey dwelling within ninety (90) days of the granting of consent to the Development Application in accordance with such consent. The respondents were also ordered to pay the Council's costs of the proceedings.

In summary, the court found that the respondents had breached the Notice of Determination of Development Application No. 701/2008, and ordered that they be within ninety (90) days to demolish and remove the existing single storey dwelling on the property, or otherwise obtain an appropriate development consent to allow it to remain in some form or another. The court also ordered that the respondents must within fourteen (14) days to lodge a development application with the Council for the demolition and removal of the existing single storey dwelling on the property, and to demolish and remove the existing single storey dwelling within ninety (90) days of the granting of consent to the Development Application in accordance with such consent. The respondents were also ordered to pay the Council's costs of the proceedings.

Orders

Orders of the court

1.The Court declares that in breach of section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 the Respondents have carried out development otherwise than in accordance with the Notice of Determination of Development Application No. 701/2008 dated 22 October 2010 for the proposed development at Lot 10, Deposited Plan 27602, 955 Camden Valley Way Catherine Field New South Wales 2750.

2.Order pursuant to section 124 of the Act that the Respondents are within ninety (90) days to demolish and remove the existing single storey dwelling on the Property, or otherwise obtain an appropriate development consent to allow it to remain in some form or another.

3.As alternative to Order No 2, an order pursuant to section 124 of the Act that the Respondents are:

(a) within fourteen (14) days to lodge a development application with the Applicant for the demolition and removal of the existing single storey dwelling on the Property; and

(b) to demolish and remove the existing single storey dwelling within ninety (90) days of the granting of consent to the Development Application in accordance with such consent.

4. The Respondents are to pay the Applicant's costs of the proceedings.

5. The exhibits may be returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Camden Council v Rafailidis [2012] NSWLEC 51
Hearing dates:	05/03/2012
Decision date:	05 March 2012
Jurisdiction:	Class 4
Before:	Lloyd AJ
Decision:	1.The Court declares that in breach of section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 the Respondents have carried out development otherwise than in accordance with the Notice of Determination of Development Application No. 701/2008 dated 22 October 2010 for the proposed development at Lot 10, Deposited Plan 27602, 955 Camden Valley Way Catherine Field New South Wales 2750. 2.Order pursuant to section 124 of the Act that the Respondents are within ninety (90) days to demolish and remove the existing single storey dwelling on the Property, or otherwise obtain an appropriate development consent to allow it to remain in some form or another. 3.As alternative to Order No 2, an order pursuant to section 124 of the Act that the Respondents are: (a) within fourteen (14) days to lodge a development application with the Applicant for the demolition and removal of the existing single storey dwelling on the Property; and (b) to demolish and remove the existing single storey dwelling within ninety (90) days of the granting of consent to the Development Application in accordance with such consent. 4. The Respondents are to pay the Applicant's costs of the proceedings. 5. The exhibits may be returned.
Catchwords:	CIVIL ENFORCEMENT - non-compliance with conditions of development consent - appropriate relief
Legislation Cited:	Camden Local Environmental Plan No. 48 Camden Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979 Local Government Act 1993
Category:	Principal judgment
Parties:	Camden Council (Applicant) Efrem Rafailidis (First Respondent) Koula Rafailidis (Second Respondent)
Representation:	M Bonanno (Sol) (Applicant) First and second Respondents in person Lindsay Taylor Lawyers (Applicant)
File Number(s):	40855 of 2011
Publication restriction:	Nil