Sader v Elgammal [2022] NSWLEC 107

Sader v Elgammal [2022] NSWLEC 107

The Construction Certificate CCC-26BOW/2021 is invalid to the extent that it incorporates landscape plans (Dapple Designs Issue D) which authorize works not permitted by the Development Consent, specifically the demolition of the rear wall, excavation of the natural rock, stairs, and construction of new slabs. The works carried out (Northern and Southern Slabs) required development consent and were not so authorized. The inconsistencies between the CC and DC are material and substantial, making compliance with both impossible; therefore, the CC is invalid only to the extent of the CC Landscape Plans, not the entire certificate. Orders for demolition of unauthorized slabs and restraint...

Parties
First Applicant: Mark Sader; Second Applicant: Sandra Sader; First Respondent: Yasser Elgammal; Second Respondent: Abdul Hammoud; Third Respondent: The State of New South Wales
Jurisdiction
Australia
Judgment Date
25 August 2022
Procedural Posture
Civil Enforcement / Principal Judgment After Final Hearing
Outcome
Declarations made; Construction Certificate held invalid in part; demolition orders proposed; costs reserved; final orders adjourned for submissions.
Legal Topics
Development Consent, Construction Certificate, Demolition Works, Landscape Plans, Enforcement Proceedings
Planning Law Environmental Law Development Consent Construction Certificate Demolition Works Landscape Plans Enforcement Proceedings

Case Brief

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Parties

Mark Sader

First Applicant

Sandra Sader

Second Applicant

Yasser Elgammal

First Respondent

Abdul Hammoud

Second Respondent

The State of New South Wales

Third Respondent

Procedural Posture

Civil Enforcement / Principal Judgment After Final Hearing

Legal Issues

  1. 1 Whether the Construction Certificate (CC) is consistent with the Development Consent (DC) as required by the Environmental Planning and Assessment Act 1979 (NSW) and regulations
  2. 2 Whether the demolition and other works (including concrete slabs and excavation of natural rock) were unlawfully carried out without or contrary to development consent
  3. 3 Whether the CC is invalid in whole or in part, particularly with respect to landscape plans

Ratio Decidendi

The Construction Certificate CCC-26BOW/2021 is invalid to the extent that it incorporates landscape plans (Dapple Designs Issue D) which authorize works not permitted by the Development Consent, specifically the demolition of the rear wall, excavation of the natural rock, stairs, and construction of new slabs. The works carried out (Northern and Southern Slabs) required development consent and were not so authorized. The inconsistencies between the CC and DC are material and substantial, making compliance with both impossible; therefore, the CC is invalid only to the extent of the CC Landscape Plans, not the entire certificate. Orders for demolition of unauthorized slabs and restraint...

Court Disposition

Declarations made; Construction Certificate held invalid in part; demolition orders proposed; costs reserved; final orders adjourned for submissions.

Orders

  • First Respondent undertakes not to undertake works requiring development consent on land below the High Water Mark without consent.
  • Court declares that Construction Certificate CCC-26BOW/2021 is invalid to the extent it incorporates the specified landscape plans.