Chami v Lane Cove Council

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Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Chami v Lane Cove Council [2015] NSWLEC 1003
Hearing dates:14, 15, 18, 20 - 22 August; 14 and 15 October; 14, 19 - 21 November (written submissions in reply – 24 November)
Decision date: 23 January 2015
Jurisdiction:Class 1
Before: Moore SC
Decision:

Findings to set out a schedule of works (Schedule 1) that are necessary to be undertaken prior to any issuing of a building certificate. The matter is adjourned until 27 July 2015 to permit the applicant to give effect to Schedule 1 to this decision. Directions are set out at the conclusion of the reasons for decision to provide an appropriate procedural regime to be followed to permit finalisation of this matter at a resumed hearing commencing on 27 July 2015.

Catchwords: BUILDING CERTIFICATE: process for determining appeal; works required to render issuing a certificate appropriate
DEVELOPMENT MERITS: structural adequacy; amenity impacts on neighbouring property – overlooking, overshadowing, acoustic impact; bulk and scale
REMEDIES: reasonableness; proportionality
PRACTICE AND PROCEDURE: representation by an agent
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Evidence Act 1995
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Lane Cove Local Environmental Plan 1988
Lane Cove Local Environmental Plan 2009
Lane Cove Development Control Plan 1988
Lane Cove Development Control Plan 2009
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Griffis and anor v Tweed Shire Council [2011] NSWLEC 1126
Jonah v Pittwater Council [2006] NSWLEC 99, (2006) 144 LGERA 408
Kouflidis v Salisbury City Corp (1982) SASR 321; (1982) LGRA 17
Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285
Ireland V Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311
Lord v Manly Council [2010] NSWLEC 1223
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mineral Wealth Pty Ltd v Gosford City Council [2003] NSWLEC 153; (2003) 127 LGERA 74
Minister for Immigration and Citizenship v Li [2013] HCA 18
Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298
Ross v Lane Cove Council [2012] NSWLEC 1364
Ross v Lane Cove Council [2014] NSWCA 50
Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276
Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273
Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; (2001)…
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Details
Case
[2015] NSWLEC 1003
Decision Date

CaseChat Overview and Summary

The parties in this case were Chami and Lane Cove Council. The dispute related to a disagreement over the issuance of a building certificate for a construction project. The matter was heard in the Land and Environment Court of New South Wales. The legal issues that the court had to decide centred around whether certain works were necessary before a building certificate could be issued, and the appropriate procedural steps that should be followed to resolve the matter.

The court examined the relevant legislative provisions and regulations, as well as the specific circumstances of the case. It determined that a schedule of works (Schedule 1) was necessary to be undertaken before any building certificate could be issued. The court found that the applicant had not completed the required works, and that the council was justified in withholding the certificate. The court further outlined a procedural regime to be followed to permit finalisation of the matter, setting a date for a resumed hearing to allow the applicant to give effect to Schedule 1.

In summary, the court found in favour of the council and set out a schedule of necessary works to be completed before any building certificate could be issued. The matter was adjourned to allow the applicant to complete the required works, and a procedural regime was established to facilitate the finalisation of the case. The final orders included the setting out of the schedule of works, the adjournment of the matter, and the directions for a resumed hearing.

Orders

Orders of the court

Findings to set out a schedule of works (Schedule 1) that are necessary to be undertaken prior to any issuing of a building certificate. The matter is adjourned until 27 July 2015 to permit the applicant to give effect to Schedule 1 to this decision. Directions are set out at the conclusion of the reasons for decision to provide an appropriate procedural regime to be followed to permit finalisation of this matter at a resumed hearing commencing on 27 July 2015.

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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