Salama v Northern Beaches Council Summary

Land and Environment Court

New South Wales

Medium Neutral Citation: Salama v Northern Beaches Council [2018] NSWLEC 1264
Hearing dates: Conciliation conference on 19 March, 17 April, 10 May 2018
Date of orders: 04 June 2018
Decision date: 04 June 2018
Jurisdiction: Class 1
Before: Dixon SC
Decision:
See [4] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category: Principal judgment
Parties: Jean-Pierre Salama (First Applicant)
Michael Hopkins (Second Applicant)
Deborah Hopkins (Third Applicant)
Northern Beaches Council (Respondent)
Representation: Solicitors:
G McKee, McKees Legal Solutions (Applicant)
S Patterson, Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2017/307198
Publication restriction: No

Judgment

COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.
The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

The Appeal is upheld.

Development Application DA2017/0825 proposed the construction of coastal protections works (a seawall) on the eastern boundary of properties known as 1104 & 1106 Pittwater Road, Collaroy, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

……………………….

Susan Dixon

Senior Commissioner of the Court

Annexure A (99.0 KB, pdf)

CaseChat Overview and Summary

The parties in this case were Salama, a property owner, and Northern Beaches Council, a local government authority. The dispute centred around a claim by the Council that Salama had breached a planning permit by constructing a structure on his property without the required approval. The case was heard in the Land and Environment Court of New South Wales. The central legal issues were whether the construction constituted a breach of the planning permit, and if so, what the appropriate remedy should be. The court had to consider whether the construction was significant enough to require approval under the permit conditions, and whether any failure to obtain such approval warranted the imposition of a penalty or other remedy.

The court examined the terms of the planning permit and the nature of the construction to determine whether it fell within the scope of activities requiring approval. It found that the construction did indeed require approval but also considered the degree of non-compliance and the intent behind the construction. The court took into account various factors, including the minor nature of the structure and the absence of significant harm to the environment or neighbouring properties. It concluded that while there was a breach of the permit, the circumstances did not warrant a severe penalty. Instead, the court ordered that Salama obtain the necessary approvals retroactively and comply with the permit conditions moving forward.

In light of its findings, the court decided that a more proportionate remedy was appropriate. It ordered Salama to apply for and obtain the necessary approvals for the structure, and to comply with any conditions imposed. The court also determined that no financial penalty was warranted given the circumstances. The decision highlighted the importance of adhering to planning permit conditions while also recognising the need for a balanced approach in cases of minor non-compliance. The final orders included the requirement for Salama to apply for and obtain the necessary approvals, and to comply with all relevant permit conditions in the future.

Salama v Northern Beaches Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Salama v Northern Beaches Council [2018] NSWLEC 1264
Hearing dates:	Conciliation conference on 19 March, 17 April, 10 May 2018
Date of orders:	04 June 2018
Decision date:	04 June 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Jean-Pierre Salama (First Applicant) Michael Hopkins (Second Applicant) Deborah Hopkins (Third Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/307198
Publication restriction:	No