Pselletes v Randwick City Council

Pending Appeal: 040370/08

Land and Environment Court

of New South Wales

CITATION:

Pselletes v Randwick City Council [2008] NSWLEC 234

PARTIES:

APPLICANT
Gary Pselletes

RESPONDENT
Randwick City Council

FILE NUMBER(S):

11253 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Development Consent :- appeal against order to comply with the terms of a consent; construction of consent; unauthorised works

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

CASES CITED:

Clark & Davis v Wollongong City Council & Others [2008] NSWLEC 110
Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248
Jones v Dunkel (1958-1959) 101 CLR 298
NRS Group Pty Ltd v Cowra Shire Council [2008] NSWLEC 156

DATES OF HEARING:

14-15 August 2008

EX TEMPORE JUDGMENT DATE:

15 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Newman, Solicitor of
Newman & Associates

RESPONDENT
Mr M Henry
SOLICITORS
Shaw Reynolds Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

15 August 2008

11253 of 2007 Pselletes v Randwick City Council

EXTEMPORE JUDGMENT

Introduction

1 His Honour: Mr Pselletes has brought this Class 1 appeal against an order issued by Randwick Council on 12 November 2007 that he comply with the terms and conditions of Development Consent DA/964/2006 granted on 14 December 2006. He claims the Order is “otiose, invalid and of no effect”, and seeks (in his Amended Points of Claim par 12(b)) a declaration that he is entitled to rely on that consent as “approving the balcony as communicated to him”.

2 The Order is made under Item 15 of s.121B of the Environmental Planning & Assessment Act 1979 (“EP&A Act”); it lists various allegedly “unauthorised works identified” by the Council; and it requires him to perform six specified tasks (see Exhibit P1).

3 During the course of some negotiations between the parties two of those six matters were “resolved” in the sense that Council does not now seek to enforce points 4 and 5, but the Council presses points 1-3 and 6, namely:

· [1] Remove the brick balustrade to the unauthorised balcony that is located on the top of the concrete slab above the garage (approximately 900mm in height).

· [2] Demolish and remove unauthorised concrete slab forming the roof to the garage and base for the balcony.

· [3] Reduce the size of the window opening located on the northern elevation (identified as elevation 1 on the approved plans) above the garage constructed so as to be consistent with DA/964/2006 in terms of width, location and number of openings.

…

· [6] To satisfy the critical stage inspection requirements contained in condition No.10 of the development consent and section 109E(3) and clause 162A of the Environmental Planning and Assessment Regulations 2000 to the satisfaction of Council and the Private Certifying Authority (PCA).

In this regard you are required to remove the necessary internal and external wall, floor, ceiling, cladding to enable…