Lane Cove Council v Chami (No 3) - [2014] NSWLEC 18

Land and Environment Court

New South Wales

Medium Neutral Citation: Lane Cove Council v Chami (No 3) [2014] NSWLEC 18
Hearing dates: 10 March 2014
Decision date: 12 March 2014
Jurisdiction: Class 4
Before: Pain J
Decision:
1. From 23 April 2014 until further order of this Court or until an occupation certificate is issued in relation to the works carried out pursuant to development consent DA 325/07, Ms Chami is restrained from residing at 8 Bayview Street, Northwood.
2. Costs are reserved.

Catchwords: INTERLOCUTORY RELIEF - exercise of discretion whether to make order preventing occupation of house in absence of occupation certificate
Legislation Cited: Environmental Planning and Assessment Act 1979 Pt 4A Division 1
Cases Cited: Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148
Lane Cove Council v Chami (No 2) [2014] NSWLEC 11
Lane Cove Council v Ross (No 14) [2013] NSWLEC 87
Category: Interlocutory applications
Parties: Lane Cove Council (Applicant)
Chami, Sarab (Respondent)
Representation: Mr N Eastman (Applicant)
In person (Respondent)
Pikes & Verekers Lawyers

File Number(s): 40044 of 2014

Judgment

In these Class 4 proceedings Lane Cove Council (the Council) seek orders requiring demolition of unauthorised building work carried out at a house in Bayview Street, Northwood (the house) and reinstatement works. Similar orders were made in Lane Cove Council v Ross (No 14) [2013] NSWLEC 87 (Ross No 14). The Council is seeking the same orders against Ms Chami as were made against Mr Ross because she is now the owner and I understand is preventing Mr Ross from complying with the Court's orders to demolish and reinstate the building. These proceedings were commenced by the Council in January 2014 against Ms Chami.

Ms Chami represented herself before me. Ms Chami is presently in occupation of the house. No occupation certificate has been issued for the house. Ms Chami advised the Council and the Court that she occupied the house from January 2014 during interlocutory injunction proceedings seeking orders restraining building works before Sheahan J heard on 4, 7 and 10 February 2014. His Honour granted the injunction sought by the Council on 10 February 2014 stopping building work then continuing at the house in Lane Cove Council v Chami (No 2) [2014] NSWLEC 11 (Chami (No 2)). The Council then becoming aware for the first time that Ms Chami was in occupation amended its summons on 18 February 2014 to add par 4A which seeks an order that Ms Chami be restrained from residing in the house until an occupation certificate is granted in relation to the works required to be carried out pursuant to development consent DA325/07.

The proceedings were set down for final hearing on 10 March 2014. Ms Chami filed a Notice of Motion on 28 February 2014 seeking orders that the proceedings be adjourned pending determination of an application for a building certificate and/or merit appeal in the Court inter alia. By agreement with Ms Chami 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: [2014] NSWLEC 18
Decision Date: 12 March 2014

CaseChat Overview and Summary

In the case of Lane Cove Council versus Chami, the dispute involved a council's enforcement of its planning powers against a property owner. The Local Court of New South Wales was tasked with adjudicating on the matter. The council sought to prevent the owner, Ms Chami, from residing in her property on the basis that the building works carried out thereunder a specific development consent had not been completed in accordance with the terms of that consent, and that the works had not been inspected and approved by the council.

The central legal issue before the court was whether the council was justified in preventing Ms Chami from residing in her property, given that the building works had not been inspected and approved by the council as required by the development consent. The court had to consider the relevant legislative provisions, the terms of the development consent, and the rights of the property owner. The court also needed to determine whether the council's actions were reasonable and proportionate to the circumstances.

The court found that the council's actions were justified and that it was appropriate to restrain Ms Chami from residing in her property until the building works had been inspected and approved by the council. The court held that the council had a legitimate interest in ensuring that building works were carried out in accordance with the development consent and that the property owner had failed to comply with the terms of that consent. The court also found that the council's actions were reasonable and proportionate to the circumstances, and that they did not amount to an unlawful deprivation of Ms Chami's property. Accordingly, the court made an order restraining Ms Chami from residing in her property until the building works had been inspected and approved by the council.

Orders

Orders of the court

1. From 23 April 2014 until further order of this Court or until an occupation certificate is issued in relation to the works carried out pursuant to development consent DA 325/07, Ms Chami is restrained from residing at 8 Bayview Street, Northwood.

2. Costs are reserved.

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 3) [2014] NSWLEC 18
Hearing dates:	10 March 2014
Decision date:	12 March 2014
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. From 23 April 2014 until further order of this Court or until an occupation certificate is issued in relation to the works carried out pursuant to development consent DA 325/07, Ms Chami is restrained from residing at 8 Bayview Street, Northwood. 2. Costs are reserved.
Catchwords:	INTERLOCUTORY RELIEF - exercise of discretion whether to make order preventing occupation of house in absence of occupation certificate
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pt 4A Division 1
Cases Cited:	Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 Lane Cove Council v Chami (No 2) [2014] NSWLEC 11 Lane Cove Council v Ross (No 14) [2013] NSWLEC 87
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Chami, Sarab (Respondent)
Representation:	Mr N Eastman (Applicant) In person (Respondent) Pikes & Verekers Lawyers
File Number(s):	40044 of 2014