Sutherland Shire Council v Nader (No 2) - [2007] NSWLEC 438

Land and Environment Court

of New South Wales

CITATION: Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438

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

FILE NUMBER(S): 41183 of 2006

CORAM: Pain J

KEY ISSUES: Practice and Procedure :- leave to rely on further evidence in relation to exercise of the Court's discretion to require demolition of unauthorised building works - leave to reopen case refused

LEGISLATION CITED: Evidence Act 1995 s131

CASES CITED: Sutherland Shire Council v Nader [2007] NSWLEC 363

DATES OF HEARING: 18 June 2007

EX TEMPORE JUDGMENT DATE: 18 June 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr R O'Gorman-Hughes
SOLICITOR
Home Wilkinson Lowry
RESPONDENTS
Mr M Seymour
SOLICITOR
Burrell Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

18 June 2007

41183 of 2006 Sutherland Shire Council v Paul Nader and Haifer Nader (No 2)
EX TEMPORE JUDGMENT

1 Her Honour: I handed down an ex tempore judgment in Sutherland Shire Council v Nader [2007] NSWLEC 363 on 23 May 2007 in which I made findings in relation to demolition of unauthorised building work but did not make final orders as there was potentially a need to clarify certain issues related to building plans before making those orders. The matter was set down for mention today in relation to those issues. The Respondents’ counsel filed in Court today a Notice of Motion seeking:

1) Leave to:
a. file and rely upon this motion
b. dispense with the rules of service

2) Leave to the Respondents to re-open their case to:
a. File and rely upon the affidavit of Gary John Finn sworn 6 June 2007; and
b. Apply under s 124 (3) of the Environmental Planning and Assessment Act 1979 to adjourn the proceedings to enable an application to be made to obtain consent of the structures the subject of these proceedings.

2 Prayer 1 of the Notice of Motion was granted. The matter has therefore been argued today with virtually no notice to the Council. The Respondents sought to rely on an affidavit of Mr Burrell sworn 8 May 2007 which I previously refused to allow to be read in the proceedings on 22 - 23 May 2007. An affidavit of Mr Finn, architect, sworn 6 June 2007 was also sought to be relied on.

3 I indicated in the course of argument that I do not intend to grant the leave to reopen the case sought in prayer 2(b) of the Notice of Motion in light of the findings I already made in my earlier judgment about whether I should exercise my discretion to order demolition. The matters considered in my earlier judgment include the impact of the unauthorised structures on the surrounding area and that two previous s 96 modification applications for very similar or smaller structures to those now built on the Respondents’ roof have been refused by the Council, as identified by Ms Pinfold’s affidavit sworn 16 February 2007.

4 I do not…

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.

Keep reading for free

Create a free CaseChat account to read Sutherland Shire Council v Nader (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWLEC 438
Decision Date: 18 June 2007

CaseChat Overview and Summary

In Sutherland Shire Council v Nader (No 2), the applicant, Sutherland Shire Council, sought to enforce a demolition order against the respondents, Paul Nader and Haifer Nader, for unauthorised building works. The Land and Environment Court of New South Wales was tasked with determining whether the respondents should be granted leave to rely on further evidence and to reopen their case in relation to the exercise of the court's discretion to require demolition of the unauthorised building works.

The primary legal issue before the court was whether the respondents should be granted leave to rely on additional evidence, specifically the affidavits of Mr Burrell and Mr Finn, and whether the court should reopen the case to consider this new evidence. The court also needed to decide if the evidence provided was relevant and admissible under the Evidence Act 1995. Another issue was the impact of the unauthorised structures on the surrounding area and the previous refusals of similar modification applications by the Council.

The court, presided over by Pain J, ruled that leave to reopen the case would not be granted. The court found that the affidavit of Mr Burrell could not be relied upon as the privilege had not been waived. Furthermore, the court allowed only parts of the affidavit of Mr Finn to be read, as it went beyond the issues previously permitted. However, the court permitted the reading of certain parts of Mr Finn's affidavit concerning the height of the lift shaft, which was an additional issue not previously considered. The court indicated that the excessive height of the lift shaft, which might be a metre or more above the approved height, was a matter to be considered in exercising its discretion regarding the demolition orders.

The court's decision was based on the need for clarity on the height of the lift shaft and the accuracy of the development consent plans. The court found that the additional evidence concerning the lift shaft's height was material and should be considered in making the demolition orders. The court also noted that further evidence or submissions might be needed on this issue and instructed the parties to clarify the extent of further evidence required and devise a timetable for addressing these matters.

Orders