Lovelace v Cignarella - [2001] NSWLEC 261

Land and Environment Court

of New South Wales

CITATION: Lovelace v Cignarella [2001] NSWLEC 261

PARTIES:
APPLICANT
Lovelace
RESPONDENT
Cignarella

FILE NUMBER(S): 40091 of 2001

CORAM: Cowdroy J

KEY ISSUES: Building Approval :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1919

CASES CITED: Cramer v Leichhardt Municipal Council [1992] NSWLEC 10;
Jones v Dunkel (1959) 101 CLR 298;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Winn v Director General National Parks and Wildlife [2001] NSWCA 17;
Wollongong City Council v Australian Iron & Steel Pty Limited (1988) 67 LGRA 51

DATES OF HEARING: 7/11/01

DATE OF JUDGMENT:
11/16/2001

LEGAL REPRESENTATIVES:

APPLICANT
Dr S Churches (Barrister)
SOLICITOR
Williamson Isabella
RESPONDENT
Mr P Moggach (Solicitor)
SOLICITOR
Kearns & Garside Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40091 of 2001
CORAM: Cowdroy J
DECISION DATE: 16/11/01

Lola Lovelace

Antonio Cignarella

JUDGMENT

1. By application class four filed on 25 May 2001 the applicant seeks a declaration that the respondent has contravened the conditions of Building Application 73/1203 (“the consent”) issued in respect of land known as Lot 17 in DP 216649 or 23 Barbara Street, Warrawong (“lot 17”). The applicant also seeks orders requiring the respondent to comply with the terms of the application.

Facts

2. On 1 June 1973 the Wollongong City Council (“the council”) granted the consent to Mr J Caleiro to erect a ‘Brick veneer dwelling and garage’ upon lot 17. The consent was issued subject to the following conditions:-

The applicant initially claimed that none of the three conditions of the consent had been satisfied. However, at the hearing the applicant asserted non-compliance only in respect of condition 1 and condition 3.

3. A ‘Notification of Building’ signed by Mr Caleiro notified the council that the dwelling would be ‘ready for inspection on the 8th day of January 1974’. Another ‘Notification of Building’ relating to the consent, signed by Benny R Peviotta, and dated 15 July 1974 is signed in the space marked ‘Office Use Only’ and dated 18 July 1974. The Court infers that construction of the dwelling and garage had taken place by such dates.

4. The applicant deposed that she had lived adjacent to lot 17 since 1965 and that ‘Up to the present time no portion of the creek’, which is the watercourse referred to in condition 1 of the consent, had been piped by either Mr Coleiro or any successor in title.

5. The applicant submits that since the consent runs with the land it imposes a burden upon the respondent as a successor in title to comply with the conditions attached to the consent. The respondent purchased lot 17 in early 1989 from a Mr Zazoc.

Condition 1: piping of watercourse

6. The applicant asserts that piping of the natural watercourse near the south western section of the dwelling on lot 17 has not…

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.

Continue reading Lovelace v Cignarella

Details

AGLC: Lovelace v Cignarella [2001] NSWLEC 261
Case: [2001] NSWLEC 261
Decision Date: 11/16/2001

CaseChat Overview and Summary

In Lovelace v Cignarella, the applicant, Lola Lovelace, sought a declaration that the respondent, Antonio Cignarella, had contravened the conditions of a building consent issued in respect of a property at Lot 17, 23 Barbara Street, Warrawong. The applicant also sought orders requiring the respondent to comply with the terms of the consent. The primary issue was whether the respondent had complied with the conditions of the consent, specifically regarding the piping of a watercourse and the positioning of the eaves of the dwelling and garage. The court had to determine if the respondent breached the conditions of the consent and whether the applicant was entitled to relief despite the delay in bringing the proceedings.

The court found that there was no evidence to suggest that the City Engineer was dissatisfied with the piping of the watercourse, and the issuance of a building certificate by the council indicated satisfaction with the compliance of the consent conditions. Regarding the positioning of the eaves, the court held that the term 'eaves' in the consent was not to be interpreted broadly to include all structures on the property. The court concluded that the consent condition applied only to the dwelling, not the garage. The court further found that the delay in bringing the proceedings and the lack of any adverse effects from the alleged breaches meant that the applicant was not entitled to the relief sought.

The court dismissed the application and ordered that the applicant pay the costs of the respondent. The exhibits were to be returned to the parties. This decision underscores the importance of strict adherence to the terms of building consents and the consequences of delays in pursuing compliance actions.

Orders