Wagga Wagga City Council v Willis

[2006] NSWLEC 383

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Wagga Wagga City Council v Willis [2006]  NSWLEC 383

PARTIES:
APPLICANT
Wagga Wagga City Council

RESPONDENT
Bradley James Willis

CASE NUMBER:      40300 of        2006

CATCH WORDS:    

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979

CORAM:        Talbot J

DATES OF HEARING:          26/06/2006

EX TEMPORE DATE:          26/06/2006

LEGAL REPRESENTATIVES

APPLICANT
Mr S C Simington (Solicitor)
SOLICITORS
Lindsay Taylor Lawyers

RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

26 June 2006

40300 of 2006     Wagga Wagga City Council v Willis

JUDGMENT

1. Talbot J: In these proceedings the council is seeking a declaration that works described in the evidence have been carried out generally on the second level of the existing building at the premises 54 Railway Street, Wagga Wagga, without the necessary consent required pursuant to the Environmental Planning and Assessment Act 1979. These works comprise what appear to be an extension of an open deck area at the upper level in the south-western corner of the existing building and an extension beyond bedrooms 1 and 2 in a northerly direction also at the second level.

2. The evidence is that none of these works have been approved and the further evidence is that the works appear to have been carried out in an unsatisfactory, unworkmanlike manner.  It is appropriate, therefore, that orders be made whereby the works described be demolished, including those works which support the rear deck area in so far as the upper deck area is unauthorised. 

1. Obviously the respondent will need to consider the completion of a satisfactory roof to the area which has been built over at the second level in the northern section.  Currently there appears to be a makeshift, temporary, unsatisfactory roof over the unauthorised extension.  The evidence discloses that an attic store previously occupied some part of that northern section presumably with some roof cladding over it. 

1. Any order that I make will be that the unauthorised work be demolished.  If as a consequence of that order the respondent needs to make an application to council in respect of consequential building work in order to secure the dwelling, that is a matter that lies entirely within the responsibility of the respondent and about which the Court makes no order. 

1. It is foreseeable, however, that if the respondent is required to demolish the northern section within twenty-eight days, that may not be sufficient time to obtain any necessary consent or authority in relation to the manner in which the area under that extension is sealed in order to protect the ground floor areas below it.  It is appropriate, therefore, that the order made by the Court be framed so that there is an unconditional obligation to demolish, within twenty-eight days, those unauthorised works in the south-western section of the property.  However the order in relation to the northern section will require demolition within a period of twenty-eight days or such further time as the council allows in writing.  The latter order will enable the council to deal with any exigencies and practicalities associated with that northern area. 

1. The Court is prepared to make the abovementioned orders on the basis that the unauthorised works, or more particularly the areas where they are located, are identified by red edge in respect of the land situated at the south-west and blue edge in respect of the northern area so that distinctive orders can be made in respect of the separate areas.  The purpose of requiring an appropriate diagram or plan, preferably using the May 1993 plans which are exhibit B in the proceedings, is so that there can be no doubt about the intent of the Court’s orders and the respondent has a clear direction in respect of what is required. 

1. Having regard to the serious consequences that can follow from a failure to comply with the Court’s order, it is appropriate for the relief to be expressed in clear terms.  Secondly, it is equally important for there to be a capacity to deal with the exigencies I have referred to in respect of the upper northern area. 

1. The respondent should be in no doubt that he is required to initiate the necessary action to obtain any council approvals in relation to the works required in the northern area.  In that regard the council has no immediate responsibility to instigate action.  The only obligation placed upon the council is to be fair and reasonable in allowing any extension of time beyond the period of twenty-eight days that may be necessary in order to obtain the required approvals and carry out the work. 

1. In the absence of any application for approval for ancillary or related works in respect of the northern area, the respondent will of course face whatever consequences may flow from failing to demolish that area on the upper level within the twenty-eight days period. 

1. I make the declaration in the amended application class 4. 

2. I make such orders as are appropriate having regard to these reasons and direct the applicant to bring in an appropriate form of orders.  I direct that the applicant serve the respondent with a copy of these reasons. 

3. In the circumstances the respondent as of last Friday had made no efforts to bring the property into conformity with the law and has not attempted in any way to participate in this hearing or any of the interlocutory stages in the proceedings.  It is appropriate, therefore, that the council have the benefit of an order for payment of its costs in relation to the application.  I order that the respondent pay the applicant’s costs in respect of the proceedings.

4. The exhibits may be returned