Woollahra Municipal Council v Sahade [2012] NSWLEC 76

Land and Environment Court New South Wales

Medium Neutral Citation: Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Hearing dates: 19 and 20 March 2012, 18 April 2012 Decision date: 18 April 2012 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [88] Catchwords: CIVIL ENFORCEMENT - construction of a stairway - whether exempt development - whether stairway a pathway - whether stairway meets development standards - whether stairway complied with requirement for exempt development that it does not involve removal of a tree - stairway not exempt development - breach of statute established - council sought declaration of breach and order for removal - whether court should exercise discretion to refuse relief - declaration and order should be made Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76, 76A Cases Cited: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Woollahra Municipal Council (Applicant) Mrs Rita Sahade (Respondent) Representation: Mr P R Rigg (Solicitor) (Applicant) Mr M V Sahade (Barrister) (Respondent) Norton Rose (Applicant) Oliveri Lawyers (Respondent) File Number(s): 40587 of 2011

EX TEMPORE Judgment

A debate about the legality of a stairway 1Mrs Sahade and her family want to have more convenient access to their residence at 86 Wolseley Road, Point Piper. Without seeking development consent, Mrs Sahade arranged for tradesmen to cut down a row of pencil pines which shielded a neighbouring residence at 84 Wolseley Road, Point Piper and to build over the cut stumps a flight of timber stairs to link the garage forecourt, which is on a higher elevation, with an existing pathway and stairs lower in elevation, which lead to the front door of Mrs Sahade's residence. 2The neighbours complained to the local council, Woollahra Municipal Council ("the Council"). After investigation, the Council brought proceedings seeking a declaration that the construction of the stairway is a breach of the Woollahra Local Environmental Plan 1995 ("LEP") and the Environmental Planning and Assessment Act 1979 ("EPA Act") and an injunction ordering Mrs Sahade to remove the stairway in order to remedy the breach. 3Mrs Sahade has defended the proceedings on the basis that the stairway is exempt development under s 76(2) of the EPA Act and the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("SEPP"). If the development were to be exempt development, development consent would not have been required under the LEP or the EPA Act and there would be no breach.