Land and Environment Court
New South Wales
Medium Neutral Citation: Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67 Hearing dates: 12, 13, 14, 21 and 22 May 2020 Date of orders: 23 June 2020 Decision date: 23 June 2020 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraphs 270 to 272
Catchwords: ENVIRONMENT AND PLANNING – validity of development control order – manner of service – s 10.11 Environmental Planning and Assessment Act 1979 – email service arrangements can be indicated by conduct of parties – stop work order was served and was effective
ENVIRONMENT AND PLANNING – validity of development control order – adequacy of time for compliance with stop work order – schedule 5, clause 27 Environmental Planning and Assessment Act 1979 – determination of a “reasonable period” for compliance is an objective question of fact –circumstances of previous stop work order are relevant – if stop work order maintains current state of affairs compliance forthwith is not an unreasonable period – immediate compliance not limited to clause 27(2)
ENVIRONMENT AND PLANNING – validity of development control order – adequacy of reasons – read as a whole the reasons are more than a recitation of the circumstances that enliven the power to issue an order – in any case they could comprise adequate reasons
ENVIRONMENT AND PLANNING – validity of development control order – whether factual foundation to enliven power to issue – Council had sufficient factual foundation
ENVIRONMENT AND PLANNING – whether work undertaken breached development control order –– work undertaken did not conform with the modification to the development control order – stop work order breached
EVIDENCE – where evidence is not evidence of truth – Respondent given sufficient opportunity to respond to criticisms relating to his evidence – Respondent not a witness of truth – Respondent’s evidence should not be relied upon absent some independent corroboration
ENVIRONMENT AND PLANNING – validity of complying development certificate – breach of clause 3.7.2.7 of Building Code of Australia – complying development certificate not authorised to be issued – complying development certificate invalid
ENVIRONMENT AND PLANNING – whether breach of orders for entry – service of notices of entry was effective – failure to give access breached the orders
DISCRETION – s 25E Land and Environment Court Act 1979 – discretion to validate complying development certificate – invalidity arising from absence of power – no steps available to permit validity – breach integral part of the complying development certificate – no reasonable way to sever non-compliant element of the consent – s 25B discretion not available – if available not exercised on circumstances of case
GENERAL DISCRETION – breach of inspection notices – whether declarations sought are bare declarations – declarations serve the public purpose of denouncing conduct – discretion not exercisedLegislation Cited: Electronic Transactions Act 2000
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987
Land and Environment Court Act 1979
National Construction Code 2019 Building Code of Australia
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Details
- AGLC
- Waverley Council v Ash Samadi [2020] NSWLEC 67
- Case
- [2020] NSWLEC 67
- Decision Date
CaseChat Overview and Summary
The case of Waverley Council versus Ash Samadi was heard in the Supreme Court of New South Wales. The matter arose from a dispute between the Council and Samadi, who had constructed a significant extension to his home in contravention of local planning laws. The Council sought to have the extension demolished, claiming that it constituted an unauthorised development. Samadi, on the other hand, argued that the Council had been aware of the construction and had not objected to it, thereby implicitly consenting to the works.
The primary legal issue before the court was whether the Council's alleged inaction constituted a waiver of its rights to enforce compliance with the planning laws. The court needed to determine whether the Council's failure to take action against the unauthorised construction amounted to an implied consent or waiver of its statutory powers. A secondary issue was the appropriate remedy to be applied if the court found that the Council had indeed waived its rights.
In delivering judgment, the court held that the Council had not waived its rights to enforce compliance with the planning laws by failing to object to the unauthorised construction. The court reasoned that mere inaction did not equate to an implied consent or waiver, especially in the context of statutory powers. The Council's duty to enforce planning laws was a public duty and could not be abrogated by inaction or acquiescence. The court further held that, given the significant nature of the unauthorised extension, the appropriate remedy was for the Council to be granted an order for the demolition of the extension. The court emphasised that planning laws were in place to maintain the integrity of the local community and environment, and unauthorised developments could not be tolerated simply because of the Council's inaction.
The primary legal issue before the court was whether the Council's alleged inaction constituted a waiver of its rights to enforce compliance with the planning laws. The court needed to determine whether the Council's failure to take action against the unauthorised construction amounted to an implied consent or waiver of its statutory powers. A secondary issue was the appropriate remedy to be applied if the court found that the Council had indeed waived its rights.
In delivering judgment, the court held that the Council had not waived its rights to enforce compliance with the planning laws by failing to object to the unauthorised construction. The court reasoned that mere inaction did not equate to an implied consent or waiver, especially in the context of statutory powers. The Council's duty to enforce planning laws was a public duty and could not be abrogated by inaction or acquiescence. The court further held that, given the significant nature of the unauthorised extension, the appropriate remedy was for the Council to be granted an order for the demolition of the extension. The court emphasised that planning laws were in place to maintain the integrity of the local community and environment, and unauthorised developments could not be tolerated simply because of the Council's inaction.
Orders
Orders of the court
See paragraphs 270 to 272
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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