Carmichael v Pittwater Council

[2005] NSWLEC 606

Land and Environment Court

of New South Wales

CITATION:

Carmichael & Ors v Pittwater Council [2005] NSWLEC 606

PARTIES:

APPLICANTS
Michael Carmichael
Louise Carmichael
Daryn Carmichael
Josephine Natalie Carmichael

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10504 & 10505 of 2004

CORAM:

Hussey C

KEY ISSUES:

Appeal :- s 121B Order to ceasue use of illegal building works - ceasue of use of dual occupancy - refusal of development application for alterations and additions.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

24/11/2004 13/10/2005

EX TEMPORE JUDGMENT DATE:

10/13/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. McKee, solicitor
of McKees Legal Solution

RESPONDENT
Ms E. Duenow, solicitor
of Mallesons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 October 2005

10504 of 2004 and
10505 of 2004 Michael Carmichael, Louise Carmichael, Daryn Carmichael, and Josephine Natalie Carmichael v Pittwater Council

This decision was given as an extempore decision. It has been revised and edited prior to publication.

JUDGMENT

1 These proceedings involve the following three appeals:

• Appeal 10504 of 2004, which is a Class 1 appeal lodged against a s 121B Order to cease use of illegal buildings works,

• Appeal 10505 of 2004, which is a Class 1 appeal by the owners in response to another s 121B Order, to cease use of a dual occupancy,

• Appeal 11112 of 2004, which is an appeal lodged against a refusal of a development application for alterations and additions to the dwelling to facilitate its use as a dual occupancy.
  

2 The matters have been subject to extensive discussions and negotiations between the parties. This resulted in further consideration by council whereby council resolved on 6 June 2005 that development application No. 968/04, for alterations and additions to the existing dwelling at 15 Powderworks Road, North Narrabeen be granted subject to conditions.

3 With respect to the other appeal against the Orders, the council decided to enter or negotiate an agreement for the works to be completed within an acceptable time. The council required the works to be completed in a period of 8 months from the date of its decision. The timing then for completion of the incomplete works is the outstanding issue in the proceedings today.

4 At today’s hearing I have had the opportunity of considering the neighbours concern from Mrs Shultz. This relates to the delay and the rectification works for the retaining wall at the rear of the property and the disamenity it is causing.

5 Having considered the various submissions, in my assessment it would be reasonable to adopt a realistic approach to get these works completed as the owner apparently wishes to do. Based on the discussions and submissions today, it is apparent that there are two distinct periods in which the work will be done.

6 Period 1; involves finalising the Construction Certificate plans for the retaining wall, the construction works and the associated building works. Then it is necessary to obtain a Construction Certificate approval and on receipt of that approval, the retaining walls and the foundations for the slab can be completed and certified. That work is to be completed within 3 months, i.e. by the 7 December 2005. I note council’s submission that within this period 1, it prefers the kitchen downstairs be removed. But I do not consider this requirement reasonable at this time because it won’t cause any undue disamenity if that kitchen is allowed to remain until the completion of the second period and it provides some convenience for the property owner to expeditiously complete the necessary works.

7 Period 2; then covers the time to complete all the outstanding building works above the slab, including the building extensions on the slab and the first floor level and also re-roof the complete house. Considering realistic time periods again, I note that there is a 4 to 6 week period over the Christmas break and the applicant says it is probably going to take 4 to 5 months to do this work. Putting these time elements together, then a reasonable period (but tight), is for an overall time frame of about 8 months to complete the works and satisfy the intent of the Orders. That then means from the date of these Orders a period of 8 months is allowed for the completion of period 1 and period 2 for all works to be complete.

8 I note that the parties have agreed to draft consent orders, subject to finalisation of the aforementioned timeframes. Accordingly, these timeframes are reasonable in my assessment of the evidence and various submissions, to enable consent orders to be granted.

9 By consent, the Court makes the following orders:

1. Land and Environment Court Proceeding No. 10504 of 2004 and 10505 of 2004 are dismissed..
2. Order NOT0083/04 served on the applicants by the respondent is modified in the form shown at Schedule 1 to these short minutes.
3. Order NOT0082/04 served on the applicants by the respondent is modified in the form shown at Schedule 2 to these short minutes.
4. No order as to costs.

___________________

R Hussey
Commissioner of the Court
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