Nader v Sutherland Shire Council - [2008] NSWCA 265

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Nader v Sutherland Shire Council [2008] NSWCA 265

FILE NUMBER(S):
40565/07

HEARING DATE(S):
16 September 2008

JUDGMENT DATE:
24 October 2008

PARTIES:
Paul Nader and Haifa Nader (Appellants)
Sutherland Shire Council (Respondent)

JUDGMENT OF:
Beazley JA Young CJ in Eq Sackville AJA

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC 41183/06

LOWER COURT JUDICIAL OFFICER:
Pain J

LOWER COURT DATE OF DECISION:
23 May 2007, 18 June 2007, 1 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Sutherland Shire Council v Nader [2007] NSWLEC 363
Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438
Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469

COUNSEL:
I Hemmings and M Seymour (A)
T F Robertson SC and R O'Gorman-Hughes (R)

SOLICITORS:
Burrell Solicitors (A)
HWL Lawyers (Incorporating Abbott Tout Lawyers) (R)

CATCHWORDS:
LOCAL GOVERNMENT- BUILDING CONTROL- A council sought and obtained a declaration from the Land and Environment Court that the appellants had carried out development on their land in breach of a development consent. The appellants were ordered to demolish and remove the unauthorised building work. They appealed against the demolition order. The judge applied the guidelines in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. She correctly interpreted the consent and did not take inappropriate matters into account in forming her discretionary judgment. The appeal thus must be dismissed. EVIDENCE- PRIVILEGED MATERIAL- Correspondence was sought to be tendered some of which was marked "without prejudice". The reason for the tender was to show that demolition of the whole of unauthorised building work was not required in the public interest. It was argued that s 131(2)(g) of the Evidence Act 1995 justified its admission. On the facts, exception in s 131(2)(g) not applicable.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979, s 124
Environmental Planning and Assessment Regulaton 2000, cl 50, sch 1
Evidence Act 1995, s 131(2)(f) and (g)

CATEGORY:
Principal judgment

CASES CITED:
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439
Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411
Chandos Developments Pty Ltd v Mulkearns [2008] NSWCA 62
House of Peace Pty Ltd v Bankstown CC (2000) 48 NSWLR 498
Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177
McFadden v Snow (1951) 69 WN (NSW) 8
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Mulkearns v Chandos Developments Pty Ltd (No 3) (2005) 12 BPR 22,985
NSW Trotting Club Ltd v Glebe MC (1937) 37 SR (NSW) 288
Ryde MC v Royal Ryde Homes (1970) 19 LGRA 321
Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

TEXTS CITED:

DECISION:
The appeal is dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40565/07
LEC 41183/06
BEAZLEY…

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: [2008] NSWCA 265
Decision Date: 24 October 2008

CaseChat Overview and Summary

The Sutherland Shire Council sought and obtained a declaration from the Land and Environment Court that the appellants had engaged in development on their land contrary to a development consent. Consequently, the appellants were ordered to demolish and remove the unauthorised building work. The appellants appealed this demolition order to the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the judge of the Land and Environment Court had erred in her interpretation of the development consent and whether she had taken irrelevant matters into account when exercising her discretion to order demolition. A secondary issue concerned the admissibility of certain correspondence, some marked "without prejudice," which the appellants sought to tender to demonstrate that demolition of the entire unauthorised work was not in the public interest, relying on an exception under s 131(2)(g) of the *Evidence Act 1995* (NSW).

The Court of Appeal found that the judge had correctly interpreted the development consent and had not taken inappropriate matters into account in forming her discretionary judgment. The court applied the guidelines established in *Warringah Shire Council v Sedevcic* (1987) 10 NSWLR 335, confirming that the judge's approach was sound. Regarding the privileged correspondence, the court held that the exception under s 131(2)(g) of the *Evidence Act 1995* was not applicable on the facts of the case.

Accordingly, the appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

YOUNG CJ

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Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

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