> Land and Environment Court of New South Wales CITATION : Hunters Hill Council v Colosi and Others [2003] NSWLEC 278 APPLICANT Hunters Hill Council FIRST RESPONDENT Concetto (George) Colosi PARTIES : SECOND RESPONDENT Vivian Colosi THIRD RESPONDENT La Perla Bianca Pty Limited FILE NUMBER(S) : 40587 of 2003 CORAM: Talbot J KEY ISSUES: Development Consent :- declaration and orders notwithstanding no appearance by respondents LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22/09/2003 EX TEMPORE JUDGMENT DATE : 09/22/2003 APPLICANT Mr S M Berveling (Barrister) SOLICITORS LEGAL REPRESENTATIVES: Abbott Tout RESPONDENTS N/A JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40587 of 2003 Talbot J 22 September 2003 Hunter Hill Council Applicant v Concetto (George) Colosi First Respondent Vivian Colosi Second Respondent La Perla Bianca Pty Limited Third Respondent Judgment Introduction 1 HIS HONOUR: I am satisfied that Hunters Hill Council ("the council") has established a case which shows that the building works at the rear of the property known as No. 255 Victoria Road, Gladesville have been carried out otherwise than in accordance with the development consent communicated by the council to the apparent representatives of the respondents on 18 January 2000. In particular, the building has been completed with a roof and solid balustrade walls contrary to the approved plans, which have been exhibited before the Court. 2 It is clear from correspondence between the solicitors acting for the council and the solicitors acting for the respondents, who entered an appearance on 13 June 2003, that the respondents are each clearly aware of these proceedings and the nature of the relief that the council is seeking today. The respondents have elected not to appear or place any evidence before the Court, which would enable the Court to exercise its discretion either not to make the orders or to postpone the operation thereof. 3 In the circumstances, the evidence is all one way. The respondents were called three times outside the Court at the commencement of the hearing and there has been no appearance. The Court, therefore, proposes to rely upon the evidence of Joseph Ernesto Cagliata in an affidavit dated 30 July 2003 supported in some respects by the affidavit of Kirston Marei Gerathy dated 22 September 2003 and, specifically in relation to costs, an affidavit by Jane Elizabeth Hewitt dated 21 May 2003. 4 The orders that the Court makes are as follows:- (1) I make the declaration in paragraph one of the class 4 application. (2) I make order one in the application class 4. (3) I make order two, sub-order one, in the application except for the word "windows". (4) I make order two, sub-two, notwithstanding a letter dated 19 September 2003 from Ciaglia Legal who make a belated suggestion that the orders be delayed until such time as the work is done, without giving an indication of when that may be, so I propose to make the order in the form applied for. (5) I make order five in the application. (6) The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.