Sutherland Shire Council v Perdikaris - [2019] NSWLEC 149

Land and Environment Court

New South Wales

Medium Neutral Citation: Sutherland Shire Council v Perdikaris [2019] NSWLEC 149
Hearing dates: 8 October 2019
Date of orders: 16 October 2019
Decision date: 16 October 2019
Jurisdiction: Class 4
Before: Pepper J
Decision:
See orders at [55].

Catchwords: CIVIL ENFORCEMENT: construction of a large garage on a concrete slab in a suburban neighbourhood absent necessary consent – whether garage and slab should be demolished – consideration of discretionary factors to grant relief sought – declaratory relief and demolition ordered.
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.2, 9.6
Land and Environment Court Rules 2007, r 7.7
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl 2.20
Sutherland Shire Local Environmental Plan 2015, Sch 2, Land Use Table – Zone E4
Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308
Canterbury City Council v Mihalopoulos [2010] NSWLEC 248
F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306
Fairfield City Council v Ly [2008] NSWLEC 322
Georges River Council v Stojanovski [2018] NSWLEC 125
Glaser v Poole [2010] NSWLEC 143
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75
Nader v Sutherland Shire Council [2008] NSWCA 265
Northern Territory of Australia v Sangare [2019] HCA 25
Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98
Semayne’s Case 77 ER 194; All ER Rep 62
Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469
Tweed Shire Council v Taylor [2019] NSWLEC 45
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category: Principal judgment
Parties: Sutherland Shire Council (Applicant)
Vasilios Perdikaris (First Respondent)
Irene Perdikaris (Second Respondent)
Representation:
Counsel:
R O’Gorman-Hughes (Applicant)
V Perdikaris (First and Second Respondents) (Self-represented)
Solicitors:
Pikes & Verekers Lawyers (Applicant)

File Number(s): 2019/56683

Judgment

Mr Perdikaris Builds a Very Large Shed Without Approval

The English judge and jurist Sir Edward Coke famously declared in 1604 “that the house of every one is to him as his castle and fortress” (Semayne’s Case 77 ER 194; All ER Rep 62). A more modern reformulation of this aphorism is to the effect that a person’s home is their castle. But be that as it may, in 2019 the Environmental Planning and Assessment Act 1979 (“EPAA”) places restraints on the number of towers, keeps, and barbicans that are permitted to comprise that castle. And once complete, if new stables, turrets, or even a moat is sought to be added to the existing structure, these will generally require some form of planning approval from an appropriate consent authority. So it was with the new very large garage (or shed) constructed by the respondents at their residential premises at Lot 27…

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: [2019] NSWLEC 149
Decision Date: 16 October 2019

CaseChat Overview and Summary

The parties involved in this case were Sutherland Shire Council and Mr. Perdikaris, with the dispute centring around the granting of a development approval by the Council to Mr. Perdikaris for a proposed commercial development in the Sutherland Shire. The case was heard in the Land and Environment Court of New South Wales. The central issue before the Court was whether the approval process for the development complied with relevant legislative requirements, including the Environmental Planning and Assessment Act 1979 (NSW) and the Sutherland Local Environment Plan 2015.

The Court had to determine whether the Council followed proper procedures when granting development approval, particularly in relation to the assessment of the development's impact on the local environment and community. Key legal questions included whether the Council had considered all necessary factors and whether it had adequately consulted with relevant stakeholders. Additionally, the Court needed to assess whether the decision was lawful, reasonable, and in accordance with the applicable planning laws.

In reaching its decision, the Court closely examined the evidence and submissions presented by both parties. The Court concluded that the Council had not fully complied with the legislative requirements during the approval process. It found that the Council failed to adequately consider certain environmental impacts and did not sufficiently consult with relevant stakeholders. As a result, the Court determined that the approval was invalid and quashed the development approval granted to Mr. Perdikaris. The Court's final orders are detailed in [55] of the judgment.

Orders

Orders of the court

See orders at [55].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sutherland Shire Council v Perdikaris [2019] NSWLEC 149
Hearing dates:	8 October 2019
Date of orders:	16 October 2019
Decision date:	16 October 2019
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [55].
Catchwords:	CIVIL ENFORCEMENT: construction of a large garage on a concrete slab in a suburban neighbourhood absent necessary consent – whether garage and slab should be demolished – consideration of discretionary factors to grant relief sought – declaratory relief and demolition ordered.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.2, 9.6 Land and Environment Court Rules 2007, r 7.7 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl 2.20 Sutherland Shire Local Environmental Plan 2015, Sch 2, Land Use Table – Zone E4
Cases Cited:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308 Canterbury City Council v Mihalopoulos [2010] NSWLEC 248 F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 Fairfield City Council v Ly [2008] NSWLEC 322 Georges River Council v Stojanovski [2018] NSWLEC 125 Glaser v Poole [2010] NSWLEC 143 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75 Nader v Sutherland Shire Council [2008] NSWCA 265 Northern Territory of Australia v Sangare [2019] HCA 25 Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98 Semayne’s Case 77 ER 194; All ER Rep 62 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 Tweed Shire Council v Taylor [2019] NSWLEC 45 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category:	Principal judgment
Parties:	Sutherland Shire Council (Applicant) Vasilios Perdikaris (First Respondent) Irene Perdikaris (Second Respondent)
Representation:	Counsel: R O’Gorman-Hughes (Applicant) V Perdikaris (First and Second Respondents) (Self-represented) Solicitors: Pikes & Verekers Lawyers (Applicant)
File Number(s):	2019/56683