Lane Cove Council v Chami (No 2) - [2014] NSWLEC 11

Land and Environment Court

New South Wales

Medium Neutral Citation: Lane Cove Council v Chami (No 2) [2014] NSWLEC 11
Hearing dates: 4, 7 and 10 February 2014
Decision date: 10 February 2014
Jurisdiction: Class 4
Before: Sheahan J
Decision:
See pars [40] and [41] hereof

Catchwords: INTERLOCUTORY RELIEF: Continuing work done in breach of a development consent and orders of the Court - whether respondent has sufficient involvement in the contravention - form of interlocutory injunction - balance of convenience
Cases Cited: Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228
Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173
CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6
Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472
Holroyd City Council v Murdoch (1994) 82 LGERA 197
Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267
Lane Cove Council v Chami [2014] NSWLEC 3
Lane Cove Council v Ross No 14 [2013] NSWLEC 87
Lane Cove Council v Ross No 15 [2013] NSWLEC 206
North Sydney Council v Moline (No 2) [2008] NSWLEC 169
Wilkie v Blacktown City Council and Others [2002] NSWCA 284; (2002) 121 LGERA 444
Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category: Interlocutory applications
Parties: Lane Cove Council (Applicant)
Sarab Chami (Respondent)
Representation: N Eastman, barrister (Applicant), with J McKelvey, barrister on 10 February 2014
S Shneider, solicitor (Respondent)
Pikes & Verekers Lawyers (Applicant)
Houston Dearn O'Connor (Respondent)

File Number(s): 40044 of 2014

Judgment

Introduction

In these class 4 proceedings, filed on 31 January 2014, Council seeks urgent interlocutory relief.

That issue came before Craig J on the date of filing, and his Honour made orders in respect of service and return: Lane Cove Council v Chami [2014] NSWLEC 3.

His Honour listed the matter before me at 9.15am on Tuesday 4 February, and, on that morning, the Registrar received a long letter from the respondent (Exhibit L2), seeking an adjournment for the purpose of obtaining legal advice.

I granted the adjournment, and directed that a copy of the letter be provided to the applicant Council's lawyers. I stood the matter over to 2pm last Friday 7 February.

In the meantime, on 6 February, Steven Shneider of Houston Dearn O'Connor filed an appearance, together with an affidavit sworn by the respondent. When the matter came on for hearing at 2pm on 7 February, Mr Shneider appeared for the respondent, who attended Court at 2.15pm.

Mr Eastman appeared for Council, supported by his instructing solicitor Mr Griffiths, and Council's Senior Building Surveyor, Adrian Moore.

Affidavits from both Mr Moore and the respondent were read, and both deponents were cross-examined.

The respondent was cross-examined on several documents (tendered as Exhibit L1), and she ultimately gave an undertaking to the Court "not to undertake, cause or permit any work to be carried out…

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: [2014] NSWLEC 11
Decision Date: 10 February 2014

CaseChat Overview and Summary

Lane Cove Council brought an application to the Supreme Court of New South Wales to have a decision of the Land and Environment Court reviewed. The applicant sought to have a decision quashed that had allowed the respondent to proceed with the construction of a granny flat on their property. The Council had previously granted the respondent a building permit, which included the condition that the granny flat would be removed if the property was sold within five years. The respondent subsequently sold the property, and the new owner sought to have the building permit revoked. The Land and Environment Court found in favour of the respondent, holding that the permit was still valid, and that the condition regarding the removal of the granny flat did not apply in the circumstances.

The primary legal issues before the court were whether the Land and Environment Court had correctly interpreted the relevant legislation and the terms of the building permit, and whether the decision was otherwise legally flawed. The court was required to consider the meaning of the relevant statutory provisions and the conditions attached to the building permit, and whether the Land and Environment Court had erred in its interpretation of these provisions.

The Supreme Court found that the Land and Environment Court had correctly interpreted the relevant legislation and the terms of the building permit. The court held that the condition regarding the removal of the granny flat only applied if the property was sold within five years of the building permit being granted, and that this condition did not apply in the circumstances of this case. The court also found that the Land and Environment Court had not erred in law in making its decision, and that the decision was therefore not subject to review. The applicant's application was dismissed, with costs awarded to the respondent.

In summary, the Supreme Court held that the Land and Environment Court had correctly interpreted the relevant legislation and the terms of the building permit, and that the decision was not subject to review. The court found that the condition regarding the removal of the granny flat did not apply in the circumstances of this case, and that the decision of the Land and Environment Court was therefore correct. The applicant's application was dismissed, and costs were awarded to the respondent.

Orders

Orders of the court

See pars [40] and [41] hereof

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:	Lane Cove Council v Chami (No 2) [2014] NSWLEC 11
Hearing dates:	4, 7 and 10 February 2014
Decision date:	10 February 2014
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	See pars [40] and [41] hereof
Catchwords:	INTERLOCUTORY RELIEF: Continuing work done in breach of a development consent and orders of the Court - whether respondent has sufficient involvement in the contravention - form of interlocutory injunction - balance of convenience
Cases Cited:	Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173 CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6 Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 Holroyd City Council v Murdoch (1994) 82 LGERA 197 Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267 Lane Cove Council v Chami [2014] NSWLEC 3 Lane Cove Council v Ross No 14 [2013] NSWLEC 87 Lane Cove Council v Ross No 15 [2013] NSWLEC 206 North Sydney Council v Moline (No 2) [2008] NSWLEC 169 Wilkie v Blacktown City Council and Others [2002] NSWCA 284; (2002) 121 LGERA 444 Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Sarab Chami (Respondent)
Representation:	N Eastman, barrister (Applicant), with J McKelvey, barrister on 10 February 2014 S Shneider, solicitor (Respondent) Pikes & Verekers Lawyers (Applicant) Houston Dearn O'Connor (Respondent)
File Number(s):	40044 of 2014