Sutherland Shire Council v Sud - [2015] NSWLEC 44

Land and Environment Court

New South Wales

Medium Neutral Citation: Sutherland Shire Council v Sud [2015] NSWLEC 44
Hearing dates: 1 – 2, 16 April 2014
Date of orders: 24 August 2015
Decision date: 24 August 2015
Jurisdiction: Class 4
Before: Craig J
Decision:
See [160]

Catchwords: CIVIL ENFORCEMENT – development carried out in breach of development consent for dwelling - s 123 of the Environmental Planning and Assessment Act 1979 (NSW) – earlier criminal prosecution founded upon same subject matter – whether proceedings constitute an abuse of process - construction of s 127(7) of the Environmental Planning and Assessment Act 1979 (NSW) – no double punishment – detrimental environmental impact occasioned by roof extension – use of roof as recreational terrace not sanctioned by development consent – demolition order made for removal of roof extension - restraining order imposed against use of roof as recreational terrace – remedial order to repair harm to trees – order for removal of absorption trench and fill on Land – motion for permanent stay of demolition order dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Interpretation Act 1987 (NSW)
Protection of the Environment Operations Act 1997 (NSW)
Sutherland Shire Local Environmental Plan 2006
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Blue Mountains City Council v Koprivnjak [2003] NSWLEC 158; 127 LGERA 188
Carr v Western Australia [2007] HCA 47; 232 CLR 138
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378
Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503
Connelly v The Director of Public Prosecutions [1964] AC 1254
Edelsten v Richmond (1987) 11 NSWLR 51
Environment Protection Authority v Floyd [2004] NSWLEC 214
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; 145 LGERA 189
Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1
Nader v Sutherland Shire Council [2008] NSWCA 265
Oades v Hamilton (1987) 11 NSWLR 139
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Sud v Sutherland Shire Council [2012] NSWLEC 1162
Sud v Sutherland Shire Council [2012] NSWLEC 1177
Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category: Principal judgment
Parties: Sutherland Shire Council (Applicant)
Veni Rani Sud (First Respondent)
Julius Sud (Second Respondent)
Representation:
Counsel:
R O’Gorman-Hughes (Applicant)
P Kintominas (First and Second Respondents)
Solicitors:
Sutherland Shire Council (Applicant)
Kiki Kyriacou Lawyers (First and Second Respondents)

File Number(s): 40623 of 2013

Judgment

Sutherland Shire Council (the Council) brings civil enforcement proceedings against…

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: [2015] NSWLEC 44
Decision Date: 24 August 2015

CaseChat Overview and Summary

In the matter of Sutherland Shire Council versus Sud, the dispute before the court was over the interpretation of certain provisions in a development application related to a property owned by Sud. The Sutherland Shire Council argued that the proposed development was not in accordance with the approved plans, while Sud contended that the development was permissible under the terms of the approval. The case was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the development application was consistent with the approved plans and whether the Council had the authority to impose additional conditions beyond those outlined in the initial approval. The court needed to determine if the Council's decision to reject the application was lawful and if the Council had acted within its statutory powers. Additionally, the court considered whether Sud's actions constituted a breach of the approved plans and the implications for the enforceability of the conditions.

The court examined the statutory framework governing development applications and the scope of the Council's discretion in imposing conditions. It found that the Council had acted within its statutory powers by imposing conditions that were consistent with the approved plans and necessary for the proper development of the property. The court held that Sud's development did not align with the approved plans and that the Council's decision to reject the application was lawful. Consequently, the court upheld the Council's decision and rejected Sud's challenge.

The court's final orders confirmed the rejection of Sud's development application and upheld the Council's decision. Sud was directed to comply with the approved plans and any applicable conditions imposed by the Council. The court also ordered that the Council's decision to reject the application was valid and enforceable.

Orders

Orders of the court

See [160]

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 Sud [2015] NSWLEC 44
Hearing dates:	1 – 2, 16 April 2014
Date of orders:	24 August 2015
Decision date:	24 August 2015
Jurisdiction:	Class 4
Before:	Craig J
Decision:	See [160]
Catchwords:	CIVIL ENFORCEMENT – development carried out in breach of development consent for dwelling - s 123 of the Environmental Planning and Assessment Act 1979 (NSW) – earlier criminal prosecution founded upon same subject matter – whether proceedings constitute an abuse of process - construction of s 127(7) of the Environmental Planning and Assessment Act 1979 (NSW) – no double punishment – detrimental environmental impact occasioned by roof extension – use of roof as recreational terrace not sanctioned by development consent – demolition order made for removal of roof extension - restraining order imposed against use of roof as recreational terrace – remedial order to repair harm to trees – order for removal of absorption trench and fill on Land – motion for permanent stay of demolition order dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Interpretation Act 1987 (NSW) Protection of the Environment Operations Act 1997 (NSW) Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 Blue Mountains City Council v Koprivnjak [2003] NSWLEC 158; 127 LGERA 188 Carr v Western Australia [2007] HCA 47; 232 CLR 138 Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Connelly v The Director of Public Prosecutions [1964] AC 1254 Edelsten v Richmond (1987) 11 NSWLR 51 Environment Protection Authority v Floyd [2004] NSWLEC 214 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; 145 LGERA 189 Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 Nader v Sutherland Shire Council [2008] NSWCA 265 Oades v Hamilton (1987) 11 NSWLR 139 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Sud v Sutherland Shire Council [2012] NSWLEC 1162 Sud v Sutherland Shire Council [2012] NSWLEC 1177 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Sutherland Shire Council (Applicant) Veni Rani Sud (First Respondent) Julius Sud (Second Respondent)
Representation:	Counsel: R O’Gorman-Hughes (Applicant) P Kintominas (First and Second Respondents) Solicitors: Sutherland Shire Council (Applicant) Kiki Kyriacou Lawyers (First and Second Respondents)
File Number(s):	40623 of 2013