Nader v Sutherland Shire Council

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.