Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469

Land and Environment Court of New South Wales

CITATION : Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469

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

FILE NUMBER(S) : 41183 of 2006

CORAM: Pain J

KEY ISSUES: Civil Enforcement :- finalisation of orders for demolition of unauthorised building works.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s76A

Sutherland Shire Council v Nader [2007] NSWLEC 363; CASES CITED: Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

22 May 2007 DATES OF HEARING: 23 May 2007 18 June 2007 19 July 2007

DATE OF JUDGMENT: 1 August 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

1 August 2007

41183 of 2006 Sutherland Shire Council v Paul Nader and Haifer Nader (No 3)

JUDGMENT

1 Her Honour: Further to my two previous judgments in these proceedings Sutherland Shire Council v Nader [2007] NSWLEC 363 and Sutherland Shire Council v Nader (No 2) [2007] NSWLEC 438 I must finalise orders requiring the demolition of unauthorised building works carried out by the Respondents on the roof at their property 10 McPherson Place Illawong, being an airconditioning room and part of a plant room. Further evidence filed by the parties since my first judgment has clarified that compliance with the development consent DA 03/0981 granted by the Council means the area of the plant room must be substantially reduced. Additionally, the height of the plant room is higher than the height allowed by the development consent. I made orders allowing additional evidence to be filed relating specifically to the impacts of demolition of part of the plant room on the existing lift shaft already built, and the parties have filed additional affidavit evidence. 2 The Respondents relied on an affidavit of Mr Finn, architect, dated 2 July 2007. According to Mr Finn's affidavit if the Court orders demolition of all the built structure on the Respondents' rooftop not included in the development consent, this would result in the lift shaft plant room being reduced to 4.5m by 6m and the height being reduced by approximately 1000mm. This would require the lift shaft already built to be altered. In Mr Finn's opinion the Court could make orders which would significantly reduce the size and bulk of the structures on the roof but still allow the working of the lift as built. 3 Annexure 8 to Mr Finn's previous affidavit dated 6 June 2007, read on a previous occasion, is a letter from the company which installed the lift. The letter states that the lift has been built to open and close on five levels of the building including the rooftop. According to the letter from the lift company, if the height were to be reduced to less than 2550mm this would mean that: (i) the lift could no longer operate to the top level; (ii) the lift shaft would have to be reduced in height which would involve cutting and removing the tower frame, glass panels and internal rails, removing and relocating fixing points; (iii) the hydraulic piston (ram) which has a 6m extension would have to be replaced with a shorter ram; (iv) the computer would have to be reprogrammed to operate the lift on four levels; (v) the cost of this modification would be in the order of $15,000 (indicative cost only, work would be billed at actual cost of parts and labour).