Sader v Elgammal (No 2)

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sader v Elgammal (No 2) [2024] NSWLEC 4

Hearing dates:

1 and 2 February 2024

Date of orders:

2 February 2024

Decision date:

02 February 2024

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [32].

Catchwords:

JUDICIAL REVIEW: validity of complying development certificate in respect of works to a boatshed – boatshed on Crown land – no landowner’s consent obtained prior to issue of certificate – whether declaration of invalidity should be made – absence of contradictor – utility of declaration – declaration made – certifier filed submitting appearance save as to costs – consequential procedural orders made in relation to foreshadowed costs hearing.

Legislation Cited:

Environmental Planning and Assessment Regulation 2000, cl 49

Environmental Planning and Assessment Act 1979, ss 4.26(2), 4.31

Georges River Local Environmental Plan 2021

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86

Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2021] NSWLEC 64

Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1

PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40

Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140

Category:

Principal judgment

Parties:

Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Paul Gearin (Second Respondent)
State of New South Wales (Third Respondent)

Representation:

Counsel:
J Farrell (First and Second Applicants)
J Reid (First Respondent)

Solicitors:
Davidson Legal Consulting Advisory (First and Second Applicants)
One Group Legal (First Respondent)
Wilshire Webb Staunton Beattie (Second Respondent)
Department of Planning and Environment (Third Respondent)

File Number(s):

2022/366791

Publication restriction:

Nil

EX TEMPORE JUDGMENT

A Private Certifier Issues a CDC Absent Landowner’s Consent

1. These proceedings concern the carrying out of development on Crown land on the Georges River at Connells Point, in the Georges River local government area.

2. By summons filed 5 December 2022, the applicants, Mark Sader and Sandra Sader (“the Saders”), seek a declaration pursuant to s 4.31 of the Environmental Planning and Assessment Act 1979 (“the EPAA”) that complying development certificate 8058994 issued by Paul Gearin, the second respondent, on 5 September 2022 (“the CDC”), is invalid, is of no effect and is to be set aside. An order is also sought restraining the first respondent, Yasser Elgammal, from acting upon, or carrying out, any works in purported reliance on the CDC.

3. The basis of the application is the failure to obtain landowner’s consent in respect of the CDC from the State of New South Wales, the third respondent in the proceedings, prior to the CDC being issued. That ground was admitted by Elgammal in his response to the summons filed on 10 May 2023.

4. By consent, the parties therefore ask that the Court makes the orders sought in prayers 1 and 2 of relief of the summons.

5. As the parties accepted, unlike other orders sought by consent, declaratory relief…