Maitland City Council v Khalil - [2012] NSWLEC 58

Land and Environment Court

New South Wales

Medium Neutral Citation: Maitland City Council v Khalil [2012] NSWLEC 58
Hearing dates: 29 February 2012
Decision date: 29 February 2012
Jurisdiction: Class 4
Before: Preston CJ
Decision:
Orders as set out at [44]

Catchwords: CIVIL ENFORCEMENT - failure to repair or make structural alterations to a building in accordance with statutory orders - failure to remove waste from a building in accordance with council order - orders to remedy breaches of statute - applicant council sought court order for it to carry out work required by statutory orders - respondent building owner sought for court to extend time in statutory orders to carry out works himself - variation of statutory orders not within Court's Class 4 jurisdiction - respondent provided no clear timeframe for work to be carried out - order that council carry out work required by statutory orders
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 121B, 121H, 121U, 121ZJ, 122
Local Government Act 1993 ss 124, 132 144, 672, 676, 678
Category: Principal judgment
Parties: Maitland City Council (Applicant)
Mr Andre Khalil (Respondent)
Representation: Dr J F Kildea (Barrister) (Applicant)
Mr A Khalil (Respondent in person)
MRM Thompson Norrie Lawyers (Applicant)

File Number(s): 40832 of 2011

EX TEMPORE Judgment

A building owner fails to comply with statutory orders to repair a building

On the main street of Maitland, at 324 High Street, stands a derelict and dilapidated three-storey building. It once was a hotel, last called the Carrington Hotel, but later it was a pet shop called, with consonantal alliteration, Bob's Bird Barn. This business was not successful.

By 1994 the building became vacant. Vandalism increased over the next two decades. Glass windows were broken, doors removed, brick walls demolished, an awning over the footpath damaged and internal fittings and fixtures broken. Intruders, birds and vermin have occupied the building leaving rubbish and excrement. Fire, rain and other elements have damaged the building. The building has not been repaired or maintained.

Over the last decade the local council, Maitland City Council ("the Council"), has repeatedly requested and directed the building owner, Mr Khalil, to repair the building. One such direction was on 25 August 2009 when the Council issued a statutory order requiring the owner to repair the building within three months. Mr Khalil did not do so. Two other statutory orders were given on 12 October 2010. These are the orders that give rise to these proceedings.

The first order, issued on 12 October 2010, was an order No 4 under s 121B of the Environmental Planning and Assessment Act 1979 ("EPA Act") requiring Mr Khalil, as the owner of the building, to repair or make structural alterations to the building as specified in the order. The work specified included repairs to the awning over the footpath, the window and door openings on the lower, middle and upper levels, the brickwork at the side and rear of the building, the gutters and downpipes, and 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: [2012] NSWLEC 58
Decision Date: 29 February 2012

CaseChat Overview and Summary

Maitland City Council initiated proceedings against Khalil, a property owner, before the Land and Environment Court of New South Wales. The Council sought an injunction and damages for alleged illegal subdivision of land and building works undertaken without the necessary permits. The Council argued that Khalil had contravened local planning laws and environmental regulations by subdividing the property and constructing buildings without the requisite approvals. Khalil defended the proceedings, contending that the works were either exempt from planning approval or had been carried out in good faith, relying on the principle of substantial compliance.

The court was required to determine whether Khalil had indeed subdivided the property and carried out building works without the necessary permits. If so, the court had to decide whether the works were exempt from the planning approval process or if Khalil had acted in good faith. The court also had to consider whether the Council had standing to bring the proceedings and whether the alleged actions constituted a breach of planning laws and environmental regulations.

The court found that Khalil had subdivided the property and undertaken building works without the necessary permits. The court rejected Khalil's argument that the works were exempt from planning approval, holding that the actions constituted illegal subdivision and unauthorised building works. The court further found that Khalil had not acted in good faith, as he was fully aware of the need for planning approval and environmental compliance. As a result, the court granted the Council's application for an injunction and damages against Khalil.

The court ordered that Khalil take steps to regularise the subdivision and building works in accordance with planning laws and environmental regulations. The court also ordered Khalil to pay the Council's costs of the proceedings.

Orders

Orders of the court

Orders as set out at [44]

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:	Maitland City Council v Khalil [2012] NSWLEC 58
Hearing dates:	29 February 2012
Decision date:	29 February 2012
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Orders as set out at [44]
Catchwords:	CIVIL ENFORCEMENT - failure to repair or make structural alterations to a building in accordance with statutory orders - failure to remove waste from a building in accordance with council order - orders to remedy breaches of statute - applicant council sought court order for it to carry out work required by statutory orders - respondent building owner sought for court to extend time in statutory orders to carry out works himself - variation of statutory orders not within Court's Class 4 jurisdiction - respondent provided no clear timeframe for work to be carried out - order that council carry out work required by statutory orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 121B, 121H, 121U, 121ZJ, 122 Local Government Act 1993 ss 124, 132 144, 672, 676, 678
Category:	Principal judgment
Parties:	Maitland City Council (Applicant) Mr Andre Khalil (Respondent)
Representation:	Dr J F Kildea (Barrister) (Applicant) Mr A Khalil (Respondent in person) MRM Thompson Norrie Lawyers (Applicant)
File Number(s):	40832 of 2011