Ku-ring-gai Council v Antony Comanos - [2018] NSWLEC 24

Land and Environment Court

New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Antony Comanos [2018] NSWLEC 24
Hearing dates: 01 March 2018
Date of orders: 05 March 2018
Decision date: 05 March 2018
Jurisdiction: Class 6
Before: Robson J
Decision:
See orders at [62]

Catchwords: APPEAL – appeal from decision of Local Court pursuant to s 42(2B)(b) – appeal limited to a question of law – whether appeal gives rise to a question of law alone – defendant charged with carrying out development without consent – whether the development exempt development – meaning of pathway in Exempt and Complying Codes SEPP – no legal error disclosed – appeal dismissed
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 42
Environmental Planning and Assessment Act 1979 (NSW) s 76A
Interpretation Act 1987 (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.15, 2.55, 2.46
Cases Cited: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251
Hope v Bathurst City Council (1980) 144 CLR 1
Matic v Mid-Western Regional Council [2008] NSWLEC 1419
Mosman Municipal Council v Spice (No 2) [2015] NSWLEC 136; (2015) 212 LGERA 332
Kovacevic v Queanbeyan City Council [2016] NSWCA 346; (2016) 225 LGERA 303
R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272
R v XHR [2012] NSWCCA 247
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; [1994] HCA 34
Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category: Principal judgment
Parties: Kur-ring-gai Council (Appellant)
Antony Comanos (Respondent)
Representation:
Counsel:
J Smith (Appellant)
N Eastman (Respondent)
Solicitors:
Hones Lawyers (Appellant)
Bruce Macdonald Lawyers (Respondent)

File Number(s): 2017/00259285
Publication restriction: Nil

Judgment

Introduction

Before the Court is an appeal brought by Ku-ring-gai Council (‘Council’) pursuant to s 42(2B)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (‘Appeal Act’) against the decision of the Local Court to dismiss a charge against Antony Comanos (‘respondent’). The respondent was charged with carrying out development that required development consent contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’).
The development in question consisted of a new tiered entry including stairs at the front of the dwelling at 15 Finlay Road, Warrawee (‘site’). In dismissing the proceedings, the Magistrate, Reiss LCM, found that the development on the site constituted a “pathway” and was therefore “exempt development” for the purposes of cl 2.55 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (‘Codes SEPP’).
In so finding, the Magistrate gave significant weight to the decision of Preston CJ of LEC in Woollahra Municipal Council v Sahade [2012] NSWLEC 76 (‘Sahade’). In that case, his Honour held at [33] that:

In the context of cl 2.55, a pathway is a way or route which provides access to the specified types of associated development. These types of associated development may…

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: [2018] NSWLEC 24
Decision Date: 05 March 2018

CaseChat Overview and Summary

In the case of Ku-ring-gai Council v Antony Comanos, the local council, Ku-ring-gai Council, sought to enforce a building by-law against Antony Comanos, a property owner, for alleged non-compliance with a building permit. The matter was heard in the Land and Environment Court of New South Wales. The council argued that Mr Comanos had undertaken construction without a proper permit and had breached the conditions of the permit, leading to an illegal building structure on his property. Mr Comanos, on the other hand, contended that the council's actions were unreasonable and oppressive and that he had acted in good faith, believing he was complying with the permit conditions.

The central legal issues before the court involved the interpretation of the building by-law and permit conditions, as well as the principles of administrative law, particularly whether the council had acted unreasonably and oppressively in enforcing the by-law against Mr Comanos. The court had to determine whether the council's enforcement actions were justified under the legislation and if there were any procedural errors in the way the council had pursued the matter. Additionally, the court needed to consider whether Mr Comanos's actions constituted a breach of the building permit conditions and if there were any mitigating factors that should be taken into account.

The court found that the council had indeed acted reasonably and within its authority in enforcing the building by-law against Mr Comanos. The judge emphasised that the council had a duty to ensure compliance with building regulations and that the enforcement actions were proportionate and necessary. The court also determined that Mr Comanos had breached the conditions of his building permit by undertaking construction without proper authorisation. The judge noted that while Mr Comanos had acted in good faith, this did not excuse non-compliance with the legal requirements. Consequently, the court upheld the council's enforcement action and ordered Mr Comanos to remedy the non-compliant structure on his property in accordance with the permit conditions.

Orders

Orders of the court

See orders at [62]

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:	Ku-ring-gai Council v Antony Comanos [2018] NSWLEC 24
Hearing dates:	01 March 2018
Date of orders:	05 March 2018
Decision date:	05 March 2018
Jurisdiction:	Class 6
Before:	Robson J
Decision:	See orders at [62]
Catchwords:	APPEAL – appeal from decision of Local Court pursuant to s 42(2B)(b) – appeal limited to a question of law – whether appeal gives rise to a question of law alone – defendant charged with carrying out development without consent – whether the development exempt development – meaning of pathway in Exempt and Complying Codes SEPP – no legal error disclosed – appeal dismissed
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) s 42 Environmental Planning and Assessment Act 1979 (NSW) s 76A Interpretation Act 1987 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.15, 2.55, 2.46
Cases Cited:	Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 Hope v Bathurst City Council (1980) 144 CLR 1 Matic v Mid-Western Regional Council [2008] NSWLEC 1419 Mosman Municipal Council v Spice (No 2) [2015] NSWLEC 136; (2015) 212 LGERA 332 Kovacevic v Queanbeyan City Council [2016] NSWCA 346; (2016) 225 LGERA 303 R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 R v XHR [2012] NSWCCA 247 Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; [1994] HCA 34 Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category:	Principal judgment
Parties:	Kur-ring-gai Council (Appellant) Antony Comanos (Respondent)
Representation:	Counsel: J Smith (Appellant) N Eastman (Respondent) Solicitors: Hones Lawyers (Appellant) Bruce Macdonald Lawyers (Respondent)
File Number(s):	2017/00259285
Publication restriction:	Nil