Di Francesco & Ors v Blantrix Pty Ltd & Ors - [2004] NSWLEC 669

Land and Environment Court

of New South Wales

CITATION: Di Francesco and Ors v Blantrix Pty Limited and Ors [2004] NSWLEC 669

PARTIES: APPLICANTS:
Elwyn Di Francesco
Kenneth Laing
Andrew Paton
Sarina Russo
Voltraint No 1019 Pty Limited
FIRST RESPONDENT:
Blantrix Pty Limited
SECOND RESPONDENT:
Bive Pty Limited
THIRD RESPONDENT:
Kovelan Bangaru

FILE NUMBER(S): 41439 of 2004

CORAM: Pain J

KEY ISSUES: Planning Instruments :- Whether works carried out in apartments in building are exempt development pursuant to SEPP 60 - meaning of the phrase "non-structural alterations" - whether works will impact on neighbourhood because generate noise
dust or vibration

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 4, s 76, s 76A(1 s 124(1)
Interpretation Act 1987, s 11
State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries
State Environmental Planning Policy No 60 - Exempt and Complying Development, cl 2, cl 5(2), cl 7(2)(b)(iii), cl 14, cl 15, sch 3
Sydney Cove Authority Redevelopment Scheme

CASES CITED: Advance Fitness v Bondi Diggers [1999] NSWSC 264;
Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2004] NSWSC 487;
Arlone Pty Ltd, James Wasley and Robert Norman Bradbury v Teller Properties Pty Ltd, Hawcroft Holdings Pty Ltd, Tibor Balog and Edward Hawcroft No G324 of 1993 Fed. No. 32/95;
Auburn Council v H. & E. Sidgreaves Pty Ltd (1941) 58 WN (NSW) 118;
Council of the Municipality of Waverly v Parker (1960) 77 WN (NSW) 243;
Granada Theatres Ltd v Freehold Investment (Leyton - Stone) Ltd [1959] 1 Ch 592;
J F Hillam Pty Ltd v Mooney (1988) 48 SASR 381;
Mills & Rockerleys Ltd v Leicester City Council [1946] KB 315;
Owners SP 10701 v Segelov Dana and Others [1999] NSWSSB 61;
Smith and Others v Justices of Portsmith [1906] 2 KB 315

DATES OF HEARING: 02/12/04
03/12/04
06/12/04
07/12/04
09/12/04

DATE OF JUDGMENT: 12/21/2004

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr P. Tomasetti instructed by Andreones Pty Ltd
RESPONDENTS:
Mr D. Officer QC with Mr D. Wilson instructed by James R Knowles Lawyers Pty Ltd

JUDGMENT:

ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 December 2004

41439 of 2004 Di Francesco & Ors v Blantrix Pty Limited & Ors
JUDGMENT

1 Her Honour: The Applicants, Elwyn Di Francesco, Kenneth Laing, Andrew Paton, Sarina Russo and Voltraint No 1019 Pty Limited all own lots in strata plan 70672, a mixed commercial and residential building known as “The Cove”, located at 129-139 Harrington Street, Sydney (“the building”). Lot 213 and 214 SP 70672, being apartments 4301 and 4302 in the building, are owned by Blantrix Pty Limited, the First Respondent, and Bive Pty Limited, the Second Respondent. Kovelan Bangaru, the Third Respondent, is the sole director and shareholder of Blantrix Pty Limited and Bive Pty Limited.

Background

2 On 22 November 2004 the Applicants filed a Notice of Motion seeking an ex parte interlocutory injunction restraining the Respondents from carrying out building work in Lot 213 (apartment 4301) and Lot 214 (apartment…

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 Di Francesco & Ors v Blantrix Pty Ltd & Ors 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: [2004] NSWLEC 669
Decision Date: 12/21/2004

CaseChat Overview and Summary

The applicants, Elwyn Di Francesco, Kenneth Laing, Andrew Paton, Sarina Russo and Voltraint No 1019 Pty Limited, sought an injunction restraining the respondents, Blantrix Pty Limited, Bive Pty Limited and Kovelan Bangaru, from carrying out building work in apartments 4301 and 4302 in the building known as "The Cove" without development consent until further order. The applicants also sought a declaration that the respondents have carried out development in contravention of the Environmental Planning and Assessment Act 1979 (EP&A Act) and an order restraining the respondents from carrying out development except in accordance with the EP&A Act. The court found that some of the works carried out or to be carried out by the respondents were not exempt development pursuant to State Environmental Planning Policy No 60 (SEPP 60) and that the respondents had carried out or caused to be carried out development in contravention of the EP&A Act without obtaining development consent. The court found that the works identified in Sch 2 of the applicants' amended Class 4 application which were structural, and therefore not exempt development pursuant to SEPP 60, were: core drilling, construction, plastering and gyprocking of new walls, removal and construction of foyer walls and partitions, demolition of masonry walls, construction of fire places and demolition of plant/shower rooms on level 45. The court found that the works identified in Sch 2 of the applicants' amended Class 4 application which did not interfere with the neighbourhood under cl 7(2)(b)(iii) of SEPP 60 and were not structural were: pipe work where there is no chasing involved, joinery, "hanging" ceilings in foyer, plastering and gyprocking existing walls and replacement of wooden treads on stairs. The court found that the works identified in Sch 2 of the applicants' amended Class 4 application which were not structural and which interfered with the neighbourhood under cl 7(2)(b)(iii) of SEPP 60 were: concrete topping of slabs, penetrating the floor slab, chasing of masonry walls to provide for service connections and tiling of levels 43 and 44. The court made an order restraining the respondents from carrying out the building work needing development consent in relation to apartment 4302 until such time as the requirements imposed under the EP&A Act in relation to such work have been complied with.

Orders