Innes v Camden Council

[2007] NSWLEC 329

Land and Environment Court

of New South Wales

CITATION:	Innes v Camden Council [2007] NSWLEC 329
PARTIES:	APPLICANT John Blair Sibbald Innes RESPONDENT Camden Council
FILE NUMBER(S):	10960 of 2006
CORAM:	Moore C
KEY ISSUES:	Appeal - Section 121B Order :- Order to demilish
DATES OF HEARING:	16 January and 2 May 2007
EX TEMPORE JUDGMENT DATE:	2 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr O Sticther, solicitor Otto Stichter & Associates RESPONDENT Mr G Castellan, solicitor Ritchie & Castellan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

2 May 2007

10960 of 2006 John Blair Sibbald Innes v Camden Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an appeal pursuant to s 121ZB of the Environmental Planning and Assessment Act1979 concerning an order issued by Camden Council (the Council) to Mr Innes requiring him to demolish a shed structure located on Lot 101 DP1007725.

2 When I visited the site in the company of the parties’ legal representatives and those instructing them on 16 January, it became apparent that, although the Council considered that the original order may have applied to two shed structures, the actual location of the boundary between the two allotments caused the order only to apply to one of them.

3 As a result of discussions on the site, which made it obvious that there were a significant number of matters in dispute between the parties, I endeavoured to encourage the parties to have discussions with a view to global resolutions of their issues.

4 The matter came before me again on 3 April when it was obvious, during that case management, that global resolution was not possible.

5 Some work had been done in removing the roof of the two sheds that were in contention, including, specifically, that located on Lot 101.

6 I am now satisfied (and Mr Castellan, solicitor for the Council, concedes) that the remaining walls, other than the wall to the shed on Lot 101 which effectively forms a fence between the front and rear elements of the property, have now been removed.

7 I am satisfied that this has effected the removal of the use of the shed and that that which remains is no longer a shed but is an internal dividing fence on the property.

8 I am satisfied, from the terms of my inspection of the property, that, in the context of a shed structure (and setting aside any issues which the Council might wish to pursue relating to the permissibility or otherwise of that which remains as a fence, a matter about which I offer no comment in these proceedings as it is not appropriate to do so), I am satisfied that the order to demolish and remove the relevant metal structure on Lot 101 should be amended to require the removal of those elements that have been so removed.

9 No time is required for the giving effect to this order because the order has now been satisfied.

10 The consequences are:

• the appeal is upheld; and
• the order is amended as I have foreshadowed and no time is required for its compliance as it has been satisfied.

11 That finalises these matters. Orders to that effect will be issued.

Tim Moore

Commissioner of the Court