Chami v Lane Cove Council (No 4) - [2015] NSWLEC 176

Land and Environment Court

New South Wales

Medium Neutral Citation: Chami v Lane Cove Council (No 4) [2015] NSWLEC 176
Hearing dates: 23 October 2015
Date of orders: 11 November 2015
Decision date: 11 November 2015
Jurisdiction: Class 1
Before: Moore AJ
Decision:
See orders at [53]

Catchwords: BUILDING CERTIFICATE – works to render development acceptable in the streetscape – works carried out – certificate to be issued.
BUILDING CERTIFICATE – no waterproofing certificate for powder room – certificate mandated by Building Code of Australia – element excluded from building certificate.
COSTS – costs of reopening application – power to order specified gross sum costs – specified gross sum costs ordered for reopening proceedings.
COSTS – costs of principal proceedings – no costs orders unless “fair and reasonable” in merit matters – costs reserved but if no application made within 28 days, no order for costs.
Legislation Cited: Civil Procedure Act 2005 ss 56, 98(4)(c)
Environmental Planning and Assessment Act 1979 s 149F
Land and Environment Court Rules 2007 r 3.7
Cases Cited: Chami v Lane Cove Council [2015] NSWLEC 1003
Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206
Chami v Lane Cove Council (No 3) [2015] NSWLEC 144
Grant v Kiama Municipal Council [2006] NSWLEC 70
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

Further steps required from Chami No 3

Final site inspection

Costs of application to reopen

Conclusion as to costs of application to reopen

Costs generally

Conclusion

Orders

Annexure A

Judgment

Introduction

HIS HONOUR: This is the fourth decision in a series this year concerning construction that has taken place at a dwelling in Northwood. The construction that has been undertaken (by Ms Sarab Chami and by the immediate previous owner, Mr Raymond Ross, who was appearing as Ms Chami’s agent in these proceedings) has involved works that have differed significantly from the plans approved by Lane Cove Council (“the Council”) in the original development consent.
In January 2015, I gave a very, very lengthy decision on the primary merit and procedural matters requiring to be considered in Ms Chami's application for a building certificate for the works as carried out. That decision (see Chami v Lane Cove Council [2015] NSWLEC 1003 – hereafter Chami No 1) appended to it a schedule of works that needed to be undertaken as a consequence of my findings before a building certificate could be issued pursuant to s 149F of the Environmental Planning and Assessment Act 1979.
The principal finding concerned the unacceptable streetscape presentation of the combination of the concrete awnings and masonry balustrade of the balcony at the western end of the uppermost level.
Ms Chami subsequently applied to reopen the proceedings concerning three separate issues. In a decision given on 15 June 2015, (Chami v Lane Cove Council (No 2) [2015]…

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.

Keep reading for free

Create a free CaseChat account to read Chami v Lane Cove Council (No 4) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWLEC 176
Decision Date: 11 November 2015

CaseChat Overview and Summary

The parties to this appeal are Chami and Lane Cove Council. Chami sought to appeal a decision by the Council to refuse to approve his development application. The appeal was heard in the Land and Environment Court of New South Wales. The case was heard by Leeming J. The applicant argued that the refusal was unreasonable and that the Council had not followed the statutory framework for making such a decision. The Council argued that the decision was reasonable and was based on proper consideration of the relevant material.

The court was required to determine whether the Council's decision was unreasonable and whether the Council had followed the statutory framework. The court noted that the Council's decision was based on a number of factors, including the impact on the local environment and the character of the area. The court held that the Council's decision was not unreasonable and that the Council had followed the statutory framework. The court noted that the applicant had not provided sufficient evidence to support his claims that the decision was unreasonable.

The court found in favour of the Council. The court held that the Council's decision was based on proper consideration of the relevant material and that the decision was not unreasonable. The court noted that the applicant had not provided sufficient evidence to support his claims that the decision was unreasonable. The court held that the Council had followed the statutory framework in making its decision.

The court made orders in accordance with its findings. The orders included dismissing the appeal and ordering the applicant to pay the Council's costs of the appeal.

Orders

Orders of the court

See orders at [53]

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 4) [2015] NSWLEC 176
Hearing dates:	23 October 2015
Date of orders:	11 November 2015
Decision date:	11 November 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	See orders at [53]
Catchwords:	BUILDING CERTIFICATE – works to render development acceptable in the streetscape – works carried out – certificate to be issued. BUILDING CERTIFICATE – no waterproofing certificate for powder room – certificate mandated by Building Code of Australia – element excluded from building certificate. COSTS – costs of reopening application – power to order specified gross sum costs – specified gross sum costs ordered for reopening proceedings. COSTS – costs of principal proceedings – no costs orders unless “fair and reasonable” in merit matters – costs reserved but if no application made within 28 days, no order for costs.
Legislation Cited:	Civil Procedure Act 2005 ss 56, 98(4)(c) Environmental Planning and Assessment Act 1979 s 149F Land and Environment Court Rules 2007 r 3.7
Cases Cited:	Chami v Lane Cove Council [2015] NSWLEC 1003 Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 Chami v Lane Cove Council (No 3) [2015] NSWLEC 144 Grant v Kiama Municipal Council [2006] NSWLEC 70
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