North Sydney v O'Hara

[2000] NSWLEC 281

Land and Environment Court

of New South Wales

CITATION:

North Sydney v O'Hara [2000] NSWLEC 281

PARTIES:

APPLICANT
North Sydney

RESPONDENT
O'Hara

FILE NUMBER(S):

40119 of of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Orders :- enforcement - procedure to facilitate resolution of council's order

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

20/12/00

EX TEMPORE
JUDGMENT DATE :

12/20/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay (Barrister)

SOLICITORS
Mallesons Stephen Jaques

RESPONDENT
Ms L O'Hara

SOLICITORS
n/a

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40119 of 1999
CORAM: Cowdroy J
DECISION DATE: 20/12/00

North Sydney Council

Applicant

v

Louise O’Hara

Respondent

JUDGMENT

1. In this matter by notice of motion filed on 27 October 2000 Ms O’Hara seeks various orders including an order that the orders made on 24 October 2000 be rescinded.

2. As a result of discussions this morning between Ms O’Hara and the council a resolution has been reached which is acceptable to both parties. The resolution relates to the steps to be taken for the tiles to be affixed to Ms O’Hara’s residence and also the necessary certification steps which are to take place prior thereto.

3. The council has agreed to provide Ms O’Hara with a list of structural engineers which are known to it. The council is prepared to agree to Ms O’Hara selecting the name of any structural engineer on the council’s list and if Ms O’Hara finds that those are either unacceptable or unavailable Ms O’Hara will nominate the structural engineer of her choice. Such choice is to be communicated to Ms Jago, solicitor for the council, to confirm that any certificate issued by the nominee of Ms O’Hara is acceptable to council.

4. The structural engineer is to be given the task of certifying that the roof members will be of sufficient strength to safely withstand the additional weight on the roof arising from the use of concrete tiles.

5. The council is willing to bear the costs of the investigation and report by the structural engineer, whether it be an engineer nominated in the list to be provided to Ms O’Hara or one chosen by Ms O’Hara with the consent of council.

6. Once such certification is carried out and if it is satisfactory Ms O’Hara has indicated that she will move promptly to have the roof tiles fixed to the roof.

7. I think this is a commendable resolution and to enable this proposal to proceed I make the following directions:-

(1) I direct that the council provide by letter to Ms O’Hara within the next fourteen days their preferred list of structural engineers.

(2) I direct that within fourteen days thereafter Ms O’Hara indicate to Ms Jago which of the engineers on the list she has selected to undertake the work or, alternatively, put forward to Ms Jago the name of a structural engineer whom Ms O’Hara considers appropriate.

(3) I direct that the actual commissioning for the work of the structural engineer be made by Ms O’Hara following consultation with Ms Jago as to the specific matters which are to be referred to the structural engineer in relation to the adequacy of the roof structure to withstand the weight of tiles as proposed rather than slate. The structural engineer is to be informed that his costs are to be met by council at the time he is commissioned to undertake the work.

(4) I direct that the engineer be requested to prepare his report to Ms O’Hara and to the council by 24 February 2001.

(5) I direct that the if the parties are unable to agree on the nomination of a structural engineer by Monday 22 January 2001 the matter is to be re-listed before the duty judge upon one day’s notice being given to the other party. In this event the Court will nominate such person from a list to be provided by both parties.

(6) As an additional matter the Court notes that an infringement notice which was issued to Ms O’Hara by the council pertaining to the presence of stored tiles on the footpath outside her residence will be withdrawn.

(7) These proceedings are to be re-listed before the duty judge for any further directions that might be required on Tuesday 27 February 2001 when the matter is re-listed next year there will be a report and the Court will then need to consider what steps if any are required.