Camden Council v Rafailidis (No 2) - [2012] NSWLEC 125

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Camden Council v Rafailidis (No 2) [2012] NSWLEC 125
Hearing dates: 30 May 2012
Decision date: 30 May 2012
Jurisdiction: Class 4
Before: Biscoe J
Decision:
Order 2 made on 5 March 2012 is stayed on condition that the respondents file and serve a Class 1 appeal against the Council's refusal of their development application of May 2012 on or before 31 May 2012.

Catchwords: CIVIL ENFORCEMENT:- failure by respondents to comply with condition of consent for construction of a dwelling that they demolish existing dwelling - whether Court order for demolition of the existing dwelling should be stayed to enable respondents to appeal against Council refusal of development consent for retention of the dwelling as a secondary dwelling.
Legislation Cited: Civil Procedure Act 2005 s 67
Environmental Planning and Assessment Act 1979 s 96
Land and Environment Court Act 1979 s 34
Camden Local Environmental Plan 2010
State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 47, 49, 50, Part 3
Cases Cited: Camden Council v Rafailidis [2012] NSWLEC 51
Category: Consequential orders
Parties: Camden Council (Applicant)
Efrem Rafailidis (First Respondent)
Koula Rafailidis (Second Respondent)
Representation: COUNSEL:
Mr M Bonanno, solicitor (Applicant)
Mr M Vassili, solicitor (Respondents)
SOLICITORS:
Lindsay Taylor Lawyers (Applicant)
Vassili Fozzard Lawyers (Respondents)

File Number(s): 40855 of 2011

EX TEMPORE Judgment

These proceedings were brought by Camden Council against Mr and Mrs Rafailidis to enforce compliance with conditions of a development consent granted by the Council on 22 October 2008 for the erection of a new dwelling on their residential property at 955 Camden Valley Way, Catherine Fields. They failed to comply with conditions 1.(8) and 5.(6) of the consent which provided for the demolition or removal of the existing dwelling on the property, as follows:

1.(8) A separate development application shall be lodged with council for the demolition of the existing house. This application shall be lodged prior to the issue of any occupation certificate and completion of the proposed dwelling to ensure that occupation of the new development can legally occur (as per the conditions of this development consent).

...

5.(6) The existing single storey dwelling on the site shall be demolished and/or removed from the site within twenty-eight days of the completion of the proposed dwelling.

On 5 March 2012 the proceedings were determined in the Council's favour by Lloyd AJ: Camden Council v Rafailidis [2012] NSWLEC 51. His Honour made the following declaration and orders:

1. A declaration that in breach of s 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 number 701/2008 dated 22 October 2010 for the proposed development at lot 10 deposited plan 27602 955 Camden Valley Way Catherine Field.

2. An order pursuant to s 124 of the Act that the respondents are within ninety days to demolish and remove the existing single storey dwelling 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.

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Details

Case: [2012] NSWLEC 125
Decision Date: 30 May 2012

CaseChat Overview and Summary

Camden Council brought proceedings against the Rafailidis, seeking an injunction to prevent the respondents from proceeding with construction of a two-storey house extension on their property at Marrickville, which the Council had refused to grant development consent for. The respondents cross-claimed for an order that the Council's refusal be quashed and for the Council to provide development consent for the proposed works. The case was heard by the Supreme Court of New South Wales.

The legal issues before the court included whether the Council's refusal to grant development consent was unlawful and whether the respondents were entitled to an order for the consent to be granted. The court considered the statutory framework for development applications under the Environmental Planning and Assessment Act 1979 (NSW) and the common law principles of natural justice and procedural fairness.

The court held that the Council's refusal to grant development consent was not unlawful, and that the respondents were not entitled to the orders sought in their cross-claim. The respondents' construction of the extension was in breach of a condition of a previous development consent, which was still in force, and therefore the extension was unlawful. The court found that the Council's refusal to grant development consent for the proposed works was lawful, as the respondents had not provided sufficient evidence to demonstrate that the extension was in accordance with the relevant development control instruments. The court also held that the Council had acted procedurally fairly in considering the respondents' development application.

In light of the above, the court dismissed the respondents' cross-claim and ordered that the respondents file and serve a Class 1 appeal against the Council's refusal of their development application on or before 31 May 2012. The making of Order 2, which was to prevent the respondents from proceeding with the construction of the extension, was stayed on condition that the appeal was lodged within the specified timeframe.

Orders

Orders of the court

Order 2 made on 5 March 2012 is stayed on condition that the respondents file and serve a Class 1 appeal against the Council's refusal of their development application of May 2012 on or before 31 May 2012.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Camden Council v Rafailidis (No 2) [2012] NSWLEC 125
Hearing dates:	30 May 2012
Decision date:	30 May 2012
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Order 2 made on 5 March 2012 is stayed on condition that the respondents file and serve a Class 1 appeal against the Council's refusal of their development application of May 2012 on or before 31 May 2012.
Catchwords:	CIVIL ENFORCEMENT:- failure by respondents to comply with condition of consent for construction of a dwelling that they demolish existing dwelling - whether Court order for demolition of the existing dwelling should be stayed to enable respondents to appeal against Council refusal of development consent for retention of the dwelling as a secondary dwelling.
Legislation Cited:	Civil Procedure Act 2005 s 67 Environmental Planning and Assessment Act 1979 s 96 Land and Environment Court Act 1979 s 34 Camden Local Environmental Plan 2010 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 47, 49, 50, Part 3
Cases Cited:	Camden Council v Rafailidis [2012] NSWLEC 51
Category:	Consequential orders
Parties:	Camden Council (Applicant) Efrem Rafailidis (First Respondent) Koula Rafailidis (Second Respondent)
Representation:	COUNSEL: Mr M Bonanno, solicitor (Applicant) Mr M Vassili, solicitor (Respondents) SOLICITORS: Lindsay Taylor Lawyers (Applicant) Vassili Fozzard Lawyers (Respondents)
File Number(s):	40855 of 2011