TOUMA v GERTOS [1996] NSWCA 535

TOUMA v GERTOS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, COLE JJA and ABADEE AJA 9, 19 September 1996

[1996] NSWCA 535

APPEAL from Land & Environment Court — issue not raised in court below — not permitted to be raised on appeal — no error demonstrated in finding of fact of ancillary use — appeal dismissed.

Sheller JA I agree with Cole JA.

Cole J The appellant is the owner of No. 48 Bayview Avenue, Earlwood. The respondents own No. 46. Prior to 23 June 1994 the respondents caused there to be removed from portion of their property rubbish comprising car bodies, fridges, sanitation garbage and the like which was giving off unacceptable odour. The clearing was also designed to provide bush fire protection from fires along Wolli Creek which had in the 1994 bush fires threatened residential premises. Once the rubbish was removed, large amounts of fill were placed on the land. That fill overflowed on to the appellant's land. Talbot J found that the fill "extends over an area in excess of 600m2 comprising 1134m3 at an average depth of 1.8 metres".

This work was carried out without any Council consent, and by means of unapproved access across No. 48 Bayview Avenue. The works were not known to the appellant, an absentee owner, until 22 June 1994.

On 22 June 1994 stop work orders were issued by the Council. On 30 June 1994 the respondents' lodged a development application with the Council. The application was not in evidence. However on 4 July 1994 the appellant commenced proceedings in the Land & Environment Court seeking a declaration that "the erection of the land fill platform carried out upon 46 Bayview Avenue, Earlwood is building work that requires development approval or building approval or both from the Canterbury Municipal Council, which approval has not been given". It also sought" an injunction restraining the respondents from further development or building works being carried out at 46 Bayview unless and until further order", and an order that the respondents remove all land fill from 46 Bayview Avenue and from the applicant's property at 48 Bayview Avenue Earlwood with as little disturbance as possible to 46 and 48 Bayview". It sought orders for restoration and reinstatement of numbers 46 and 48 Bayview Avenue to their natural contours and levels, a replanting of bushland, restoration of fences, and an order indemnifying the appellant for all of his losses.