NSW Caselaw
New South Wales Court of Appeal
CITATION: Nader v Sutherland Shire Council [2008] NSWCA 265
HEARING DATE(S): 16 September 2008
JUDGMENT DATE: 24 October 2008
JUDGMENT OF: Beazley JA at 1; Young CJ in Eq at 2; Sackville AJA at 56
DECISION: The appeal is dismissed with costs.
CATCHWORDS: LOCAL GOVERNMENT- BUILDING CONTROL- A council sought and obtained a declaration from the Land and Environment Court that the appellants had carried out development on their land in breach of a development consent. The appellants were ordered to demolish and remove the unauthorised building work. They appealed against the demolition order. The judge applied the guidelines in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. She correctly interpreted the consent and did not take inappropriate matters into account in forming her discretionary judgment. The appeal thus must be dismissed. - EVIDENCE- PRIVILEGED MATERIAL- Correspondence was sought to be tendered some of which was marked "without prejudice". The reason for the tender was to show that demolition of the whole of unauthorised building work was not required in the public interest. It was argued that s 131(2)(g) of the Evidence Act 1995 justified its admission. On the facts, exception in s 131(2)(g) not applicable.
Environmental Planning and Assessment Act 1979, s 124 LEGISLATION CITED: Environmental Planning and Assessment Regulaton 2000, cl 50, sch 1 Evidence Act 1995, s 131(2)(f) and (g)
CATEGORY: Principal judgment
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439 Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 Chandos Developments Pty Ltd v Mulkearns [2008] NSWCA 62 House of Peace Pty Ltd v Bankstown CC (2000) 48 NSWLR 498 Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177 McFadden v Snow (1951) 69 WN (NSW) 8 CASES CITED: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Mulkearns v Chandos Developments Pty Ltd (No 3) (2005) 12 BPR 22,985 NSW Trotting Club Ltd v Glebe MC (1937) 37 SR (NSW) 288 Ryde MC v Royal Ryde Homes (1970) 19 LGRA 321 Thaina Town (On Goulburn) Pty Ltd v Sydney City Council (2007) 156 LGERA 150 Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
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