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 grant leave to rely on the affidavit of Mr Burrell sworn 8 May 2007 as I do not consider privilege has been waived in relation to the correspondence attached to it. Sections 131(2)(f) or (g) of the Evidence Act 1995 do not apply contrary to the Respondents’ counsel’s argument.

5 I have allowed only parts of the affidavit of Mr Finn to be read (prayer 2(a)) as this affidavit canvasses matters beyond those issues in relation to which I gave leave previously to the Respondents’ solicitor to adduce further evidence. I have therefore refused leave for additional material in that affidavit to be read subject to one matter as follows. The parts of the affidavit I allowed to be read in relation to the height of the lift shaft now constructed come within my previous orders and raise an additional issue not before me previously. The issue arises that the lift shaft has been built higher than the height approved by the development consent plans, whether that height is as agreed at the first hearing between the planners Mr Marshman and Ms Pinfold, or as determined by Mr Finn in his affidavit. The excessive height could be a metre or more. Tab 8 to Mr Finn’s affidavit is a letter from the company which constructed the lift shaft and identifies the nature of the alterations required and the possible cost of those alterations if the height of the lift shaft is to be reduced. Although this letter is strictly outside the scope of my previous orders I consider it is material to which I should have regard in exercising my discretion about the orders for demolition I should make.

6 The assumption made by me on 23 May 2007, in the absence of any evidence to the contrary, was that in ordering the partial demolition of the unauthorised plant room on the roof and the unauthorised air conditioning plant room next door that the lift shaft as built could be accommodated in the plant room as identified on the development consent plans both as to area and height. It appears that assumption in relation to height is not correct. That is a matter which I am prepared to further consider as part of my discretion in relation to the orders for demolition which I intend to make.

7 The extent to which further evidence or submissions are needed on this issue of the height of the lift shaft and the overall issue of the accuracy of the development consent plans the subject of the development consent or the form of demolition orders must be clarified by the parties and a timetable devised for that to occur.