Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754

Land and Environment Court of New South Wales

CITATION : Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754 Adel Keir (1A) PARTIES : Galaxy Constructions & Development Group Pty Ltd (2A) Sutherland Shire Council (Resp) FILE NUMBER(S) : 60003 of 2004 CORAM: McClellan CJ Injunctions and Declarations :- Breach of development consent KEY ISSUES: Unauthorised building work Appeal of penalty imposed LEGISLATION CITED: Environmental Planning & Assessment Act 1979 CASES CITED: Ristevski v Hurstville City Council [2003] NSWLEC 409; Tiger Nominees Pty Ltd v The State Pollution Control Commission (1992) 75 LGRA 71 DATES OF HEARING: 7 December 2004 EX TEMPORE 12/07/2004 JUDGMENT DATE :

T Howard (Barrister - Appellants) Thurlow Fisher (Sol - Appellants)

LEGAL REPRESENTATIVES: R O'Gorman-Hughes (Solicitor - Resp) Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 7 DECEMBER 2004

60003/04 KEIR v SUTHERLAND SHIRE COUNCIL

JUDGMENT 1 HIS HONOUR: This is an appeal from the decision of Magistrate Clugston in proceedings in which his Honour imposed penalties upon Adel Keir and Galaxy Construction and Development Group Pty Limited for carrying out development otherwise than in accordance with development consent contrary to s 6A(1)(b) of the Environmental Planning and Assessment Act 1979. 2 Mr Keir is the sole director of Galaxy Constructions. The appeal to this Court was framed as a single appeal. However, each defendant was separately charged and convicted and, accordingly, the records should be amended to show a separate appeal by each defendant. 3 Galaxy Constructions carries on business as a builder. The offences were committed in the course of constructing a dwelling house at number 12 Young Street, Sylvania which was intended to be the future residence of Mr Keir and his family. The plans of the residence are in evidence and it is a substantial dwelling over a number of levels and includes basement facilities. 4 As I understand the situation, when the original development application was lodged with the Council concerns were expressed about the visual impact of the property on its neighbours and the potential impacts upon the privacy of the adjoining properties. Some of the work which was carried out without consent altered parts of the dwelling so that impacts which were originally of concern were created for neighbouring properties. When the Council became aware of the problems Mr Keir lodged s 96 applications and, ultimately, the property has been further modified so that the unreasonable impacts have been eliminated. As I understand the position, the dwelling now conforms to the Council's requirements. 5 Each charge was particularised with eighteen elements. They are as follows: