Trenwith & Ors v Sutherland Shire Council & Anor (No 4)

[2007] NSWLEC 452

Land and Environment Court

of New South Wales

CITATION:	Trenwith & Ors v Sutherland Shire Council & Anor (No 4) [2007] NSWLEC 452
PARTIES:	APPLICANTS Jon and Lynette Trenwith Hans and Inga Zoeke William and Rita Korremans FIRST RESPONDENT Sutherland Shire Council SECOND RESPONDENT John Tourvas
FILE NUMBER(S):	40937 of 2004
CORAM:	Pain J
KEY ISSUES:	Civil Enforcement :- whether extension of time for compliance ought be granted
DATES OF HEARING:	21 May 2007
EX TEMPORE JUDGMENT DATE:	21 May 2007
LEGAL REPRESENTATIVES:	APPLICANTS Mr A Pickles (Barrister) SOLICITORS Macedone Christie Willis FIRST RESPONDENT Submitting Appearance SECOND RESPONDENT In Person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 May 2007

40937 of 2004 Trenwith and Ors v Sutherland Shire Council and Anor (No 4)

EX TEMPORE JUDGMENT

1 Her Honour: This is a Notice of Motion by the Second Respondent, Mr Tourvas, seeking extension of time to comply with Court orders made on 7 September 2006. This possibility was contemplated by order 4 which stated:

Liberty to apply is reserved to the Second Respondent to seek an amendment of any time period specified by these orders.

2 Under those orders Mr Tourvas must comply with Order 2 to modify the pergola or demolish the pergola as required by Order 3. He has filed a Notice of Motion seeking an extension of twelve months for Order 2 from the expiry of the eight months compliance period. That order allowed eight months for the work to be completed, that is by May 7 2007. He is not legally represented. He first approached the Court seeking to relist the matter in April 2007, before the eight month period expired.

3 Mr Tourvas relied on his affidavit sworn 10 May 2007 and some oral evidence and was cross-examined. He has undertaken some of the work required by the orders in relation to Order 2(d) and partial planting in relation to Orders 2(g) and (h) and intends to do more planting once other building work is complete. He states he is here not to argue with carrying out the orders but simply to seek additional time. He has sworn an affidavit and given oral evidence that he will suffer serious financial hardship if he does not get the extension of time. He has provided information about his income, his wife’s income, current bank account balance and mortgage amount in total and the amount of mortgage repayments. He has two cars to run. He has two young children aged 3 and 5. In order to raise the amount for the remedial works he will have to get an extension of his mortgage loan. He currently has an income of about $4700 per month net and pays $1400 per month for his mortgage. He wishes to maintain his current loan balance and wants to save up part of the cost of the pergola in order to reduce the amount of money he will have to borrow. His wife has recently commenced working part time three days per week in order to assist with the family’s income as a result of all the costs incurred in fighting these proceedings.

4 The orders require that the work be completed within the time specified and work will therefore have to be commenced approximately two months ahead of the completion date, according to Mr Tourvas, in order to ensure that they are completed in time. That will apply to any extension of time granted

5 The Applicants oppose a 12 month extension of time and suggest four months is sufficient time. The pergola has now been in place for a considerable period of time having been built in April/May 2004. The Council suggests eight months is appropriate. These parties also submit that severe financial hardship has not been demonstrated and that Mr Tourvas has the capacity to extend his loan repayments by the necessary amount.

6 As identified in my first judgment of 29 August 2005 this was a difficult matter to weigh up the discretionary matters in the case having determined that the development consent for the pergola ought be declared invalid. I ultimately did order remedial work or demolition within fixed time frames in September 2006. One of the findings in the case relates to the failure of the Council to undertake an adequate assessment of the impact on neighbouring properties of the development application. It is important to keep that context in mind. I accept that the 7 September 2006 orders, while necessary, have a financial impact on Mr Tourvas. He currently has minimal savings as these were spent on paying his own legal fees for this court case. He is also liable to pay half of the Applicants’ legal costs of $61,000 and will also need to borrow money to pay for those. I consider that Mr Tourvas will suffer financial hardship if an extension of time is not granted and that he is seeking to avoid excessive financial risk in seeking the extension. I must weigh that up against the fact that the pergola has been in place for a considerable period and does impact on the Applicants’ properties.

7 Weighing up all the circumstances, I will allow an extension of time until 29 February 2008 for Order 2 to be complied with as Mr Tourvas estimates that the building work will take about two months to complete. I surmise that means that remedial building work on the pergola will have to be commenced in December this year in order to be completed by that date, taking into account the January holiday period. Order 3 will be amended to 30 April 2008.

8 The Court makes the following orders:

1. The orders dated 7 September 2006 be amended as follows:

(i) Order 2 be amended to substitute “by 29 February 2008” for the words “within eight months of the date of this order” so that it reads:
“2. In accordance with the recommendations of the structural engineer’s report obtained pursuant to order 1, the Second Respondent carry out the following works by 29 February 2008:
… “
(ii) Order 3 be amended to substitute “by 30 April 2008” for the words “within ten months of the date of this order” so that it reads:
“3. If the Second Respondent prefers not to comply with the orders above, the pergola structure including the piers and slab is to be demolished by 30 April 2008.”

2. Each party is to pay their own costs of the hearing on 21 May 2007.