Diab v Cavasinni (No 3) [2020] NSWLEC 119

Diab v Cavasinni (No 3) [2020] NSWLEC 119

The Court found, based on expert and documentary evidence, that multiple aspects of the development on 27 Nelson Parade, Hunters Hill, were contrary to the 2010 development consent. These included increased height of rooflines and gutters, additional French doors, footprint and location of garage and storage room within easements, construction of steps and tiled landings, non-conforming fence piers and finishes, and especially the removal and replacement by concreting of a significant sandstone outcrop where approved plans required its retention. The Court was not satisfied removal of a private electricity pole was in breach. Only breaches, not remedies or relief, were determined in this...

Jurisdiction
Australia
Judgment Date
20 August 2020
Procedural Posture
Civil Enforcement Proceedings (class 4) / Determination of Breach as a Separate Question Prior to Relief
Outcome
Declarations as to breach made; question of appropriate remedy and relief reserved; costs reserved.
Legal Topics
['development Consent' 'breach of Development Consent' 'civil Enforcement' 'modification of Consent' 'land Use' 'easements']
['environment and Planning'] ['development Consent' 'breach of Development Consent' 'civil Enforcement' 'modification of Consent' 'land Use' 'easements']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Enforcement Proceedings (class 4) / Determination of Breach as a Separate Question Prior to Relief

Legal Issues

  1. 1 ['Whether particular works and structures undertaken on 27 Nelson Parade, Hunters Hill, were contrary to development consent granted in 2010 under Environmental Planning and Assessment Act 1979 (NSW)' 'Whether the removal of a private electricity pole and excavation of sandstone outcrop constituted breaches of the consent and the EPA Act']

Ratio Decidendi

The Court found, based on expert and documentary evidence, that multiple aspects of the development on 27 Nelson Parade, Hunters Hill, were contrary to the 2010 development consent. These included increased height of rooflines and gutters, additional French doors, footprint and location of garage and storage room within easements, construction of steps and tiled landings, non-conforming fence piers and finishes, and especially the removal and replacement by concreting of a significant sandstone outcrop where approved plans required its retention. The Court was not satisfied removal of a private electricity pole was in breach. Only breaches, not remedies or relief, were determined in this...

Court Disposition

Declarations as to breach made; question of appropriate remedy and relief reserved; costs reserved.

Orders

  • ['Development on Lot 3 DP 840284 (27 Nelson Parade, Hunters Hill) found to be otherwise than in accordance with the consent in respects detailed in paragraphs 1(a)-(g) of the orders;' 'Issue of appropriate remedy and relief arising from the breaches is reserved;' 'Proceedings adjourned for mention after judgment in...