Sutherland Shire Council v Nader - [2007] NSWLEC 363

Land and Environment Court

of New South Wales

CITATION: Sutherland Shire Council v Nader [2007] NSWLEC 363

PARTIES: APPLICANT
Sutherland Shire Council
RESPONDENTS
Paul Nader and Haifer Nader

FILE NUMBER(S): 41183 of 2006

CORAM: Pain J

KEY ISSUES: Civil Enforcement :- whether Court should exercise discretion to order demolition of unauthorised building works

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s76A
Sutherland Shire Local Environment Plan 1996
Sutherland Shire Local Environment Plan 2000

CASES CITED: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING: 23 May 2007

EX TEMPORE JUDGMENT DATE: 23 May 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr R O'Gorman-Hughes
SOLICITOR
Home Wilkinson Lowry
RESPONDENT
Mr Burrell (solicitor)
SOLICITOR
Burrell Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

23 May 2007

41183 of 2006 Sutherland Shire Council v Nader
EX TEMPORE JUDGMENT

1 Her Honour: These are Class 4 proceedings seeking a declaration that unauthorised building works have been undertaken as part of the construction of a new house pursuant to development consent 03/0981 at 10 Macpherson Place, Illawong by the Respondents, in breach of s 76A of the Environmental Planning and Assessment Act 1979 (the EP&A Act). Orders for removal of those works are also sought. The building is under construction and not yet complete. These proceedings concern building work carried out on the roof.

2 The Council relied on the affidavit evidence of the Council town planner Ms Pinfold sworn 16 February 2007, 16 May 2007, 22 May 2007 and Mr Deboussi of 8 McPherson Place Illawong, the immediate neighbour. The Respondent relied on an affidavit of Mr Marshman, town planner, dated 7 May 2007 and Mr Panovski, airconditioning installation contractor, dated 7 May 2007. The planners also prepared a joint report (exhibit C).

3 A history of the granting of development consent and subsequent s 96 modification applications, is relevantly set out in the Council’s written submissions at par 4-14 as follows:

On 29 December 2003 Council granted the first-named Respondent development consent 03/0981 (“the consent”) for the erection of a two storey dwelling and pool at 10 Macpherson Place Illawong (“the property”). The consent plans show a dwelling comprising three levels. A lift shaft projects above the ceiling of the third level.

At all relevant times, development consent was required pursuant to Sutherland Shire Local Environment Plan 2000 for development for the purposes of a dwelling on the property.

On or after 8 July 2004 the Respondents commenced construction of the dwelling.

During construction the Respondents carried out the unauthorised work, which comprised:

On 21 July 2005 the first-named Respondent lodged an application to modify the consent to seek retrospective approval of the unauthorised work (“the first modification application”).

On 26 August 2005 Council refused the first modification application.

On 5 September 2005 Council issued an order under section 121B of the EP&A Act requiring the Respondents to demolish and remove part of the unauthorised work, namely the non-approved walls of the plantroom, and construct the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 363
Decision Date: 23 May 2007

CaseChat Overview and Summary

The Land and Environment Court was asked to decide whether to order the demolition of unauthorised building works in Sutherland Shire. The Sutherland Shire Council sought a declaration that the Naders had breached section 76A of the Environmental Planning and Assessment Act 1979 by carrying out unauthorised building work on the roof of a new house they were constructing. They also sought orders for the removal of the unauthorised works. The Naders did not dispute the making of the declaration but opposed the demolition orders and proposed alternative orders that would leave the unauthorised work in place. The court had to determine whether it should exercise its discretion under section 124 of the EP&A Act to order demolition of the unauthorised works.

The court considered the adverse impacts of the unauthorised works, which included a larger room on the roof with windows, an additional air conditioning equipment room, and a higher parapet. The Council's town planner gave evidence that the unauthorised works adversely impacted the neighbours' privacy and the streetscape, and breached height and floor space ratio controls in the Sutherland Shire Local Environment Plan. The Naders' town planner argued that the impact of the unauthorised works was acceptable in a town planning sense. However, the court found that the unauthorised works were not a technical breach unnoticeable to an ordinary person and had a significant adverse impact on the locality.

The court concluded that it should exercise its discretion to order demolition of the unauthorised works in order to uphold the legislative purpose of enforcing compliance with planning laws. The court noted that the Naders had not appealed against the Council's refusal of two modification applications or its order under section 121B requiring demolition of part of the unauthorised works. The court allowed the parties a short period to adduce further evidence before finalising the orders for demolition and considering the issue of costs.

The final orders were not stated in the judgment. However, the court indicated that it would order demolition of the unauthorised works, including the larger room on the roof, the additional air conditioning equipment room, and the higher parapet. The Naders would need to undertake the expense of complying with the orders occasioned by their actions in carrying out unauthorised building works.

Orders