Sutherland Shire Council v Nader (No 3) - [2007] NSWLEC 469

Land and Environment Court

of New South Wales

CITATION: Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469

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

FILE NUMBER(S): 41183 of 2006

CORAM: Pain J

KEY ISSUES: Civil Enforcement :- finalisation of orders for demolition of unauthorised building works.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s76A

CASES CITED: Sutherland Shire Council v Nader [2007] NSWLEC 363;
Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING: 22 May 2007
23 May 2007
18 June 2007
19 July 2007

DATE OF JUDGMENT:
1 August 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

1 August 2007

41183 of 2006 Sutherland Shire Council v Paul Nader and Haifer Nader (No 3)

JUDGMENT

1 Her Honour: Further to my two previous judgments in these proceedings Sutherland Shire Council v Nader [2007] NSWLEC 363 and Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438 I must finalise orders requiring the demolition of unauthorised building works carried out by the Respondents on the roof at their property 10 McPherson Place Illawong, being an airconditioning room and part of a plant room. Further evidence filed by the parties since my first judgment has clarified that compliance with the development consent DA 03/0981 granted by the Council means the area of the plant room must be substantially reduced. Additionally, the height of the plant room is higher than the height allowed by the development consent. I made orders allowing additional evidence to be filed relating specifically to the impacts of demolition of part of the plant room on the existing lift shaft already built, and the parties have filed additional affidavit evidence.

2 The Respondents relied on an affidavit of Mr Finn, architect, dated 2 July 2007. According to Mr Finn’s affidavit if the Court orders demolition of all the built structure on the Respondents’ rooftop not included in the development consent, this would result in the lift shaft plant room being reduced to 4.5m by 6m and the height being reduced by approximately 1000mm. This would require the lift shaft already built to be altered. In Mr Finn’s opinion the Court could make orders which would significantly reduce the size and bulk of the structures on the roof but still allow the working of the lift as built.

3 Annexure 8 to Mr Finn’s previous affidavit dated 6 June 2007, read on a previous occasion, is a letter from the company which installed the lift. The letter states that the lift has been built to open and close on five levels of the building including the rooftop. According to the letter from the lift company, if the height were to be reduced to less than 2550mm this would mean that:

(i) the lift could no…

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 469
Decision Date: 1 August 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was called upon to resolve a dispute between the Sutherland Shire Council and Paul and Haifer Nader over the unauthorised construction of building works on the roof of the Naders' property at 10 McPherson Place, Illawong. The primary legal issue was the finalisation of orders for the demolition of these unauthorised works in accordance with the development consent granted by the Council. The Court had to determine whether the unauthorised structures, including an air conditioning room and part of a plant room, should be demolished and, if so, to what extent.

The Court addressed the matter by examining the development consent DA 03/0981, which did not approve the use of the rooftop as a recreation area. The Court considered the evidence presented by both parties, including expert opinions on the feasibility and cost of modifying the existing lift shaft and plant room. The Naders argued that reducing the size and height of the plant room would still allow the lift to function as built, while the Council contended that maintaining the current height and size would encourage the use of the rooftop for recreation, which was not approved. The Court concluded that the development consent should be generally complied with to prevent the unauthorised use of the rooftop. The Court decided to allow a small increase in the size of the plant room to protect the building but maintained the height restriction as per the approved development consent. The Court granted the Naders 90 days to undertake the demolition works and ordered the removal of the unauthorised structures, including the top of the parapet, certain walls and roof areas, and plumbing connections to the roof.

In summary, the Court ordered the demolition of the unauthorised building works on the Naders' rooftop, ensuring compliance with the approved development consent. The Naders were required to complete the demolition within 90 days and were responsible for the costs of the proceedings. The Court's decision emphasised the importance of adhering to approved development consents to prevent unauthorised uses that could impact neighbouring properties and the overall integrity of the building.

Orders