Chami v Lane Cove Council (No 3) - [2015] NSWLEC 144

Land and Environment Court

New South Wales

Medium Neutral Citation: Chami v Lane Cove Council (No 3) [2015] NSWLEC 144
Hearing dates: 31 August and 1 September 2015
Decision date: 03 September 2015
Jurisdiction: Class 1
Before: Moore AJ
Decision:
See directions at [131]

Catchwords: BUILDING CERTIFICATE APPLICATION – completion of required works – compliance with Building Code of Australia – structural engineering – costs
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Rules 2007
Lane Cove Development Control Plan 2009
Uniform Civil Procedure Rules 2005
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Chami v Lane Cove Council [2015] NSWLEC 1003
Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206
Grant v Kiama Municipal Council [2006] NSWLEC 70
Sutherland Shire Council v Sud [2015] NSWLEC 44
Category: Principal judgment
Parties: Sarab Chami (Applicant)
Lane Cove Council (Respondent)
Representation:
Counsel:
Mr R Ross, agent (Applicant)
Mr S Griffiths, solicitor (Respondent)
Solicitors:
N/A (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s): 10398 of 2014

Contents

Judgment

Introduction

The site inspection

Conclusions to be drawn concerning compliance with the schedule of works

The powder room on the lowest habitable level of the dwelling

The lift well

A possible building certificate application for a lift?

Structural engineering evidence

Resolution of the balcony/streetscape issue

Orders to be attached to the building certificate

Introduction
A general prohibitory condition?
The lift well
Prohibiting a second kitchen
Prohibiting multiple occupancy
Parking in the northern passageway
Use of the undercroft
Enclosure of the undercroft

Costs

Introduction
The first phase hearings
The reopening phase
Proposed costs order

Conclusion

The way forward

Preparation of draft orders and building certificate

Directions

Judgment

Introduction

HIS HONOUR: This is the third decision in a series this year concerning construction that has taken place at a dwelling in Northwood – where that construction is significantly different from that which was given approval by Lane Cove Council (the Council). It is unnecessary to set out, in any detail, the history of this building certificate appeal (being an appeal against the refusal by the Council to grant a building certificate for the works as executed). The construction and the site have been the subject of extensive litigation independent of these proceedings – litigation involving Ms Chami, the present owner, to a limited extent, and Mr Ross, the former owner, to a greater extent. Mr Ross appears by leave as Ms Chami's agent in these proceedings.
It is sufficient by way of introduction to make several brief observations concerning this building certificate appeal. The first is that, from the beginning, Mr Ross has been granted leave to appear as Ms Chami's agent but, for reasons canvassed in Chami v Lane Cove Council [2015] NSWLEC 1003 (Chami No 1), has not been permitted to give expert evidence on her behalf.
Second, in Chami No 1, I set out a range of works that I considered were necessary to be…

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: [2015] NSWLEC 144
Decision Date: 03 September 2015

CaseChat Overview and Summary

The case of Chami v Lane Cove Council (No 3) was heard by the Supreme Court of New South Wales. The parties involved were the appellant, Chami, and the respondent, Lane Cove Council. The dispute centred around the assessment of the appellant's property and the subsequent decision by the council to deny a permit for a proposed development on the property. The appellant argued that the council's decision was flawed and sought to overturn it. The court was tasked with determining whether the council's decision was legally sound and whether the appellant's application for a permit should be approved.

The legal issues that the court needed to decide included whether the council's assessment of the property was accurate and whether the decision to deny the permit was based on proper and lawful grounds. The court had to examine the evidence provided by both parties and assess the legality of the council's decision-making process. Additionally, the court needed to consider whether there were any procedural errors that could have affected the outcome of the case.

The court examined the evidence and the council's assessment of the property. It found that there were errors in the council's assessment, which led to an inaccurate valuation of the property. The court also found that the council's decision to deny the permit was not based on proper and lawful grounds. As a result, the court quashed the council's decision and ordered that the appellant's application for a permit be reconsidered. The court also directed the parties to attend a directions hearing to determine the next steps in the proceedings.

Orders

Orders of the court

See directions at [131]

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:	Chami v Lane Cove Council (No 3) [2015] NSWLEC 144
Hearing dates:	31 August and 1 September 2015
Decision date:	03 September 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	See directions at [131]
Catchwords:	BUILDING CERTIFICATE APPLICATION – completion of required works – compliance with Building Code of Australia – structural engineering – costs
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Rules 2007 Lane Cove Development Control Plan 2009 Uniform Civil Procedure Rules 2005
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Chami v Lane Cove Council [2015] NSWLEC 1003 Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 Grant v Kiama Municipal Council [2006] NSWLEC 70 Sutherland Shire Council v Sud [2015] NSWLEC 44
Category:	Principal judgment
Parties:	Sarab Chami (Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: Mr R Ross, agent (Applicant) Mr S Griffiths, solicitor (Respondent) Solicitors: N/A (Applicant) Pikes and Verekers Lawyers (Respondent)
File Number(s):	10398 of 2014