Valoth v Parramatta City Council - [2011] NSWLEC 1184

Land and Environment Court

New South Wales

Medium Neutral Citation: Valoth & anor v Parramatta City Council [2011] NSWLEC 1184
Hearing dates: 22 June and 6 July 2011
Decision date: 06 July 2011
Jurisdiction: Class 1
Before: Moore SC
Decision:
1.The appeal is upheld;
2.The respondent is to provide to the applicant, within 28 days of the date of these orders, a list of the registered proprietors of the upstream properties benefited by the easement for drainage and the address that the council has for each of those registered proprietors for the purposes of correspondence with them;
3.The respondent is directed to issue a building certificate for the whole of the dwelling erected on the applicants' property at the same time that the list in (2) is provided to the applicant;
4.Within 28 days of the receipt of the building certificate and the list of names and addresses of the registered proprietors of the upstream benefited properties, the applicant is to send a letter to each of those registered proprietors (but where two or more of them share the same name and address only one letter is required for those proprietors) that encloses a copy of these reasons for decision;
5.Within 14 days of the dispatch of those letters to the upstream beneficiaries of the easement, the applicant is to file and serve an affidavit establishing compliance with (4); and
6.The exhibits, other than Exhibits 2, A and C, are returned .

Catchwords: Building certificate application; intrusion into an easement; structural adequacy; notification to beneficiaries of easement of granting of building certificate.
Legislation Cited: Land Environment Court Act 1979
Environmental Planning and Assessment Act 1979
Category: Principal judgment
Parties: R & S Valoth (Applicants)
Parramatta City Council (Respondent)
Representation: Mr H Robilliard
Robilliard Lawyers (Applicants)
Ms C Rose
Maddocks (Respondent)

File Number(s): 10309 of 2011

EXTEMPORE Judgment

Mr and Ms Valoth are the owners of a property which is located downstream on a stormwater drainage easement that benefits a number of properties above them on the slope of in the building development where their home is located. Their home is located at 5 Regiment Grove, Winston Hills and the other beneficiaries of the drainage easement that runs across their property are located up the hill from their house.

Mr and Ms Valoth have applied to Parramatta City Council (the council) for a building certificate covering the totality of the residence that is erected on their site. The council has declined to issue such a building certificate because a small portion of the rear of the dwelling intrudes into the drainage easement that incorporates the pipe taking the stormwater away from the twelve upstream properties that have the benefit of that easement.

The nature of the intrusion of the dwelling into the drainage easement is a small triangular portion of approximately a quarter of a metre along each of its short sides (sides that at a right angle to each other) and is at the dwelling's south-western corner. The drainage easement…

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: [2011] NSWLEC 1184
Decision Date: 06 July 2011

CaseChat Overview and Summary

In Valoth v Parramatta City Council, the applicants sought various orders from the court to resolve disputes with the respondent council regarding an easement for drainage over their property. The applicants argued that the council had failed to provide adequate information about the upstream properties benefiting from the easement and had not issued a building certificate for the dwelling they had constructed on their property. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues the court had to address were whether the council had adequately fulfilled its obligations under the easement by providing information to the applicants about the upstream properties and whether the council was correct in its refusal to issue a building certificate for the dwelling on the applicants' property. The court also had to determine the appropriate relief for the applicants if their claims were successful.

The court found that the council had not properly discharged its obligations under the easement, as it had not provided the applicants with a list of the registered proprietors of the upstream properties and their addresses. Additionally, the court held that the council's refusal to issue a building certificate for the dwelling was not justified. Consequently, the court granted the applicants' appeal and ordered the council to provide the requested information and issue the building certificate. The court also directed the applicants to inform the upstream beneficiaries of the easement about the court's decision and to file an affidavit confirming compliance with this obligation.

Orders

Orders of the court

1.The appeal is upheld;

2.The respondent is to provide to the applicant, within 28 days of the date of these orders, a list of the registered proprietors of the upstream properties benefited by the easement for drainage and the address that the council has for each of those registered proprietors for the purposes of correspondence with them;

3.The respondent is directed to issue a building certificate for the whole of the dwelling erected on the applicants' property at the same time that the list in (2) is provided to the applicant;

4.Within 28 days of the receipt of the building certificate and the list of names and addresses of the registered proprietors of the upstream benefited properties, the applicant is to send a letter to each of those registered proprietors (but where two or more of them share the same name and address only one letter is required for those proprietors) that encloses a copy of these reasons for decision;

5.Within 14 days of the dispatch of those letters to the upstream beneficiaries of the easement, the applicant is to file and serve an affidavit establishing compliance with (4); and

6.The exhibits, other than Exhibits 2, A and C, are returned .

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:	Valoth & anor v Parramatta City Council [2011] NSWLEC 1184
Hearing dates:	22 June and 6 July 2011
Decision date:	06 July 2011
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	1.The appeal is upheld; 2.The respondent is to provide to the applicant, within 28 days of the date of these orders, a list of the registered proprietors of the upstream properties benefited by the easement for drainage and the address that the council has for each of those registered proprietors for the purposes of correspondence with them; 3.The respondent is directed to issue a building certificate for the whole of the dwelling erected on the applicants' property at the same time that the list in (2) is provided to the applicant; 4.Within 28 days of the receipt of the building certificate and the list of names and addresses of the registered proprietors of the upstream benefited properties, the applicant is to send a letter to each of those registered proprietors (but where two or more of them share the same name and address only one letter is required for those proprietors) that encloses a copy of these reasons for decision; 5.Within 14 days of the dispatch of those letters to the upstream beneficiaries of the easement, the applicant is to file and serve an affidavit establishing compliance with (4); and 6.The exhibits, other than Exhibits 2, A and C, are returned .
Catchwords:	Building certificate application; intrusion into an easement; structural adequacy; notification to beneficiaries of easement of granting of building certificate.
Legislation Cited:	Land Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	R & S Valoth (Applicants) Parramatta City Council (Respondent)
Representation:	Mr H Robilliard Robilliard Lawyers (Applicants) Ms C Rose Maddocks (Respondent)
File Number(s):	10309 of 2011