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Keir v Sutherland Shire Council

Keir v Sutherland Shire Council

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Land and Environment Court

of New South Wales

CITATION: Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754

PARTIES: Adel Keir (1A)
Galaxy Constructions & Development Group Pty Ltd (2A)
Sutherland Shire Council (Resp)

FILE NUMBER(S): 60003 of 2004

CORAM: McClellan CJ

KEY ISSUES: Injunctions and Declarations :- Breach of development consent
Unauthorised building work
Appeal of penalty imposed

LEGISLATION CITED: Environmental Planning & Assessment Act 1979

CASES CITED: Ristevski v Hurstville City Council [2003] NSWLEC 409;
Tiger Nominees Pty Ltd v The State Pollution Control Commission (1992) 75 LGRA 71

DATES OF HEARING: 7 December 2004

EX TEMPORE
JUDGMENT DATE : 12/07/2004

LEGAL REPRESENTATIVES:

T Howard (Barrister - Appellants)
Thurlow Fisher (Sol - Appellants)
R O'Gorman-Hughes (Solicitor - Resp)
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 7 DECEMBER 2004

60003/04 KEIR v SUTHERLAND SHIRE COUNCIL
JUDGMENT

1 HIS HONOUR: This is an appeal from the decision of Magistrate Clugston in proceedings in which his Honour imposed penalties upon Adel Keir and Galaxy Construction and Development Group Pty Limited for carrying out development otherwise than in accordance with development consent contrary to s 6A(1)(b) of the Environmental Planning and Assessment Act 1979.

2 Mr Keir is the sole director of Galaxy Constructions. The appeal to this Court was framed as a single appeal. However, each defendant was separately charged and convicted and, accordingly, the records should be amended to show a separate appeal by each defendant.

3 Galaxy Constructions carries on business as a builder. The offences were committed in the course of constructing a dwelling house at number 12 Young Street, Sylvania which was intended to be the future residence of Mr Keir and his family. The plans of the residence are in evidence and it is a substantial dwelling over a number of levels and includes basement facilities.

4 As I understand the situation, when the original development application was lodged with the Council concerns were expressed about the visual impact of the property on its neighbours and the potential impacts upon the privacy of the adjoining properties. Some of the work which was carried out without consent altered parts of the dwelling so that impacts which were originally of concern were created for neighbouring properties. When the Council became aware of the problems Mr Keir lodged s 96 applications and, ultimately, the property has been further modified so that the unreasonable impacts have been eliminated. As I understand the position, the dwelling now conforms to the Council’s requirements.

5 Each charge was particularised with eighteen elements. They are as follows:

1. Replacement of lawn on the courtyard area outside the front entry with tiling and replacement of the planter box next to the laundry with tiling.

2. Elevation and tiling of the landscaped area on the north-west corner of the site.

3. Replacement of a rectilinear-shaped retaining wall outside the rumpus room with a rounded wall.

4. Deletion of a planter area under the…

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: [2004] NSWLEC 754
Decision Date: 12/07/2004

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal from Adel Keir and Galaxy Constructions & Development Group Pty Ltd against a decision by Sutherland Shire Council. The appeal was against penalties imposed for carrying out development work without consent in contravention of the Environmental Planning and Assessment Act 1979. The court was tasked with deciding the appropriate penalty for the unauthorised building work carried out by Keir and his company, as well as whether the Council was entitled to an order for costs. The primary concern was that the unauthorised alterations to the property at 12 Young Street, Sylvania had resulted in significant privacy issues for the neighbouring properties.

The court reasoned that while the Environmental Planning and Assessment Act required individuals to comply with the law, the resources available to councils were insufficient to supervise all building work. Therefore, imposing penalties that varied based on whether the unauthorised work was detected or not would be inappropriate. The court found that the unauthorised work was deliberate and carried out for personal benefit, knowing it would adversely affect neighbours. Given the deliberate nature of the breach and the need to serve as a deterrent, the court imposed a fine of $25,000 on Keir and $10,000 on Galaxy Constructions. The court decided against ordering costs in favour of either party, considering that the appeal was a consequence of a serious breach of the law.

The court's final orders were that the appeal by Keir was dismissed, while the appeal by Galaxy Constructions was upheld. The penalty imposed by the Local Court was reduced to $10,000 for Galaxy Constructions and $25,000 for Keir. Keir was ordered to pay the costs of both proceedings in the Local Court amounting to $5,480, while no order for the costs of the appeals was made. The exhibits were to be returned.

Orders