Nader v Sutherland Shire Council (No 4) - [2009] NSWLEC 1064

Land and Environment Court

of New South Wales

CITATION: Nader v Sutherland Shire Council (No 4) [2009] NSWLEC 1064

PARTIES:
APPLICANT
Paul & Haifa Nader
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10411; 10683; 10746 of 2008

CORAM: Brown C

KEY ISSUES: APPEAL :- three separate but related appeals relating to unauthorised building works carried out as part of the construction of a new dwelling and swimming pool - modification application - building application - Order requiring satisfaction of matters prior to occupation

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006

CASES CITED: 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
Super Studio v Waverley [2004] NSWLEC 91

DATES OF HEARING: 10/12/09

DATE OF JUDGMENT:
14 January 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Burrell, solicitor
SOLICITORS
Burrell Solicitors
RESPONDENT
Mr J Reilly, solicitor
SOLICITORS
HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

14 January 2009

10411, 10683 and 10746 of 2008

Paul & Haifa Nader v Sutherland Shire Council
JUDGEMENT

1 COMMISSIONER: These are three separate but related appeals relating to unauthorised building works carried out as part of the construction of a new dwelling and swimming pool pursuant to Development Consent 03/0981 granted by Sutherland Shire Council (the council) for the property at 10 McPherson Place, Illawong (the site).

2 The council’s Amended Statement of Facts and Contentions contains a history of the unauthorised works. It relevantly states:

During construction of the dwelling, it was noticed that unauthorised works had taken place. On 25 May 2005 Council issued to the owners a Notice of Intention to Give an Order No. 2 and on 5 September 2005, Council issued an Order No. 2 directing the owners "To demolish and remove the non-approved walls of the plant room and construct the plant room in accordance with the plans approved by Council DA03/0891"

Two separate section 96 modification applications were made to Council in respect of those works. Both were refused by Council.

Council thereafter commenced proceedings in Class 4 of the Land and Environment Court's jurisdiction, seeking a declaration that the works were unauthorised and consequential orders that the works be demolished and removed.

On 1 August 2007, orders

were made by the Land and Environment Court requiring demolition of a substantial part of the roof top structures. Those orders required the following works taking place, which are reflected on the plan in Appendix "A" to this Amended Statement of Facts and Contentions:

1. Lowering of the parapet around the roof edge to 750mm above the top of the first floor ceiling slab.

2.Removing those walls and areas of roof marked in hatching on the plan in Appendix "A".

3.Reducing the height of the walls marked in cross hatching on the plan in Appendix "A" to no more than 2000mm above the top of the first…

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: [2009] NSWLEC 1064
Decision Date: 14 January 2009

CaseChat Overview and Summary

Nader v Sutherland Shire Council (No 4) involved three separate but related appeals concerning unauthorized building works conducted during the construction of a new dwelling and swimming pool. The Sutherland Shire Council had previously granted Development Consent 03/0981 for the property at 10 McPherson Place, Illawong, and issued orders requiring the demolition of certain unauthorized works. The applicants, Paul and Haifa Nader, appealed the council's decisions to refuse a modification application, a building certificate application, and an order to comply with certain conditions of the development consent. The key legal issues were whether the modifications to the development complied with the planning controls and if the proposed modifications were substantially the same development as that for which consent was originally granted.

The court found that while some of the proposed modifications could be accepted, others were in conflict with the relevant objectives of the height standard and did not comply with the planning controls. The court held that the modification to the lift shaft room was unacceptable as it appeared as an additional storey above the parapet due to its increased height and width. The court also found that the use of part of the roof area as a terrace was not acceptable as it would be inappropriate from a streetscape and character point of view. However, the court allowed some modifications to the air-conditioning room and the parapet height, as they did not significantly impact the overall development.

In summary, the court upheld the appeal in part, modifying the development consent to reflect the acceptable modifications, while dismissing the other appeals. The court provided directions for the preparation of amended modification plans and ordered that the exhibits be returned.

Orders