Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67

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 exercised Legislation 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 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Brown v Randwick City Council (2011) 183 LGERA 382 Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40 Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128 Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporation (2011) 279 ALR 138 Great Lakes Shire v Lani (2007) 158 LGERA 1 Guiseppe v Registrar of Aboriginal Corporations (2007) 160 FCR 465 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 In the matter of Australasian Barrister Chambers Pty Limited [2020] NSWSC 304 J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223 Lederer v Sydney City Council (2001) 119 LGERA 350 New South Wales v Hunt (2014) 86 NSWLR 226 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Proprietors of SP 13318 & 13555 v Lavender View Regency Pty Ltd (1997) 97 LGERA 337 The Owners - Strata Plan No 4983 v Canny (2018) 233 LGERA 432 UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63 Van Haasteren v South Sydney Council (2000) 109 LGERA 252 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Willoughby City Council v Wu [2014] NSWLEC 165 Texts Cited: Macquarie Dictionary Oxford Dictionary Category: Principal judgment Parties: Waverley Council (Applicant) Ash Samadi (First Respondent) Vladan Blagojevic (Second Respondent) VB Certifier Pty Ltd (Third Respondent) Representation: Counsel: D Miller SC and D Birch (Applicant) M Wright SC and M Astill (First Respondent) Submitting Appearances (Second and Third Respondents)