Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438

Land and Environment Court of New South Wales

CITATION : Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438

APPLICANT PARTIES : Sutherland Shire Council RESPONDENTS Paul Nader and Haifer Nader

FILE NUMBER(S) : 41183 of 2006

CORAM: Pain J

KEY ISSUES: Practice and Procedure :- leave to rely on further evidence in relation to exercise of the Court's discretion to require demolition of unauthorised building works - leave to reopen case refused

LEGISLATION CITED: Evidence Act 1995 s131

CASES CITED: Sutherland Shire Council v Nader [2007] NSWLEC 363

DATES OF HEARING: 18 June 2007

EX TEMPORE JUDGMENT DATE : 18 June 2007

APPLICANT Mr R O'Gorman-Hughes SOLICITOR LEGAL REPRESENTATIVES: Home Wilkinson Lowry RESPONDENTS Mr M Seymour SOLICITOR Burrell Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pain J

18 June 2007

41183 of 2006 Sutherland Shire Council v Paul Nader and Haifer Nader (No 2)

EX TEMPORE JUDGMENT 1 Her Honour: I handed down an ex tempore judgment in Sutherland Shire Council v Nader [2007] NSWLEC 363 on 23 May 2007 in which I made findings in relation to demolition of unauthorised building work but did not make final orders as there was potentially a need to clarify certain issues related to building plans before making those orders. The matter was set down for mention today in relation to those issues. The Respondents' counsel filed in Court today a Notice of Motion seeking: 1) Leave to: a. file and rely upon this motion b. dispense with the rules of service 2) Leave to the Respondents to re-open their case to: a. File and rely upon the affidavit of Gary John Finn sworn 6 June 2007; and b. Apply under s 124 (3) of the Environmental Planning and Assessment Act 1979 to adjourn the proceedings to enable an application to be made to obtain consent of the structures the subject of these proceedings. 2 Prayer 1 of the Notice of Motion was granted. The matter has therefore been argued today with virtually no notice to the Council. The Respondents sought to rely on an affidavit of Mr Burrell sworn 8 May 2007 which I previously refused to allow to be read in the proceedings on 22 - 23 May 2007. An affidavit of Mr Finn, architect, sworn 6 June 2007 was also sought to be relied on.