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Glaser v Poole

Glaser v Poole

Case [2010] NSWLEC 143 6 August 2010

Breach of Contract

Encroachment of Buildings Act

Environmental Planning and Assessment Act

Unconscionable Conduct

Compensatory Damages

Judicial Review

Natural Justice & Procedural Fairness

Planning & Development Law

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Land and Environment Court

of New South Wales

CITATION: Glaser v Poole [2010] NSWLEC 143

PARTIES: APPLICANTS
Ivan Glaser
Diane Glaser
RESPONDENT
Amanda Poole

FILE NUMBER(S): 40276 of 2010

CORAM: Pain J

KEY ISSUES: CIVIL ENFORCEMENT :- exercise of discretion - whether to make declarations and order to demolish illegal building work - whether mollifying order to enable application to council to regularise the work ought be made

LEGISLATION CITED: Encroachment of Buildings Act 1922
Environmental Planning and Assessment Act 1979 s124, s149E
Home Building Act 1989
Waverley Development Control Plan 2006
Waverley Local Environmental Plan 1996

CASES CITED: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; 64 LGRA 177
Tynan and Ors v Meharg and Newcastle City Council [1998] NSWSC 592
Warringah Shire Council v Sedevcic (1987) 63 LGRA 361
Willoughby City Council v Dasco Design & Construction Pty Ltd [2000] NSWLEC 257

DATES OF HEARING: 3 August 2010
4 August 2010

DATE OF JUDGMENT:
6 August 2010

LEGAL REPRESENTATIVES:
APPLICANTS
Mr P Tomasetti SC
SOLICITOR
Gerald Aronstan
RESPONDENT
Mr I Hemmings
SOLICITOR
M E McMahon & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

6 August 2010

40276 of 2010 Glaser v Poole
JUDGMENT

: The Applicants seek a declaration that specified development on the Respondent’s property in Hardy Street Dover Heights is illegal as it has been built without development consent under the Environmental Planning and Assessment Act 1979 (the EP&A Act). Part of the works encroach onto the Applicants’ land in Onslow Street and the land of a neighbour in Onslow Street. Consequential orders for demolition are sought. The development consists of:

2 The Respondent admits that the works were erected without development consent contrary to the requirements of the EP&A Act. The issue is therefore whether the Court should exercise its discretion in making the declaration or orders sought by the Applicants, or other orders. The Respondent has proposed orders which require demolition of the development but such order is stayed to allow an application for development consent (DA 330/2010) for a structure on her land which removes the encroachments on the Applicants’ land and an application for a building certificate (BC 61/2010) in relation to the structures on the land apart from the encroachment. These applications have been lodged with Waverley Council (the Council).

3 The Respondent’s land and the Applicants’ land share a common boundary. The shared boundary is close to the top of a 15m cliff located at the rear of the Applicants’ land. The works have been…

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.

Continue reading Glaser v Poole

Details

AGLC: Glaser v Poole [2010] NSWLEC 143
Case: [2010] NSWLEC 143
Decision Date: 6 August 2010

CaseChat Overview and Summary

This case involves a dispute between the applicants, Ivan and Diane Glaser, and the respondent, Amanda Poole, over illegal building work carried out by the respondent on her property in Dover Heights, New South Wales. The applicants sought a declaration that the development on the respondent's property was illegal as it had been built without development consent under the Environmental Planning and Assessment Act 1979. They also sought consequential orders for demolition of the illegal works. The respondent admitted that the works were erected without development consent, but proposed orders requiring demolition of the development be stayed to allow an application for development consent and a building certificate in relation to the structures on her land. The Land and Environment Court of New South Wales was required to decide whether to exercise its discretion in making the declaration or orders sought by the applicants, or other orders.

The Court considered the principles for the exercise of discretion under s 124 of the Environmental Planning and Assessment Act 1979, which include the importance of the orderly enforcement of planning laws, the significance of the breach, the impact on the applicants, and the conduct of the parties. The Court found that the breach was not technical, given the size of the works, and that the substantial impacts on the applicants' privacy and amenity were significant. The Court also found that the respondent's conduct was careless, as she failed to obtain the required development consent and did not understand the geotechnical requirements underpinning the design plan she relied on. The Court held that the safety concerns raised by the applicants appeared justified, and that it was not appropriate to make the mollifying order sought by the respondent.

The Court issued a declaration in relation to the carrying out of illegal building work sought by the applicants, and ordered the demolition of most of the unauthorised development. The order for demolition was modified to reflect the Court's observations in the judgment, and costs were reserved. The stormwater disposal system was excluded from the terms of the demolition order, as it was considered an improvement on the system which existed previously.

Orders