ZIADE v WOOLLAHRA COUNCIL AND ORS [1994] NSWCA 357

ZIADE v WOOLLAHRA COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 1-3 February 1994, 28 April 1994 [1994] NSWCA 357

ENVIRONMENTAL PLANNING ACT, s102 — EPA ACT s124 — DEVELOPMENT CONSENT — DEPARTURE FROM COURT APPROVED PLANS — DISCRETION TO MAKE ORDERS FOLLOWING DEPARTURES — CLASS 4 PROCEEDINGS — INJUNCTIVE RELIEF — SUBSTANTIAL DEPARTURE — EVIDENCE — ADMISSIBILITY — COSTS.

FACTS:

The appellant, Ziade, was a builder who was building his own house in Vaucluse, Sydney. Development consent was only gained following two appeals to an Assessor of the Land and Environment Court. The first reversed a council refusal of consent but attached various conditions. The second, under s102 of the Environmental Planning and Assessment Act, allowed two modifications sought by Ziade and disallowed six, all eight of which had been refused by the council. One modification sought on appeal, but refused, concerned the support under a concrete slab supporting a garden terrace; in the approved plans the slab was on bedrock or perhaps landfill, but in the modification, in later structual plans "approved" by council officers, and then in fact, the slab was supported by pillars, leaving a cavity. The Council commenced Class 4 proceedings before Bannon J in the Land and Environment Court, who found significant departures from approved plans and breaches of the Act. Orders were made eliminating the benefit of departures and restraining further breaches. Ziade appealed.

HELD:

(1) The excavation did represent a departure from plans consented to under Court orders. The fact that council officers approved the structural plans indicating the excavation was irrelevant to development consent. s102 of the EPA Act assumes that development consent will be modified only if the consent authority is satisfied among other things that no prejudice will be caused to any person who objected to the Development Application the subject of that consent. The EPA Act does not countenance unilateral modifications by owners even with the knowledge or approval of council officers.