Carmichael & Ors v Pittwater Council [2005] NSWLEC 606

Carmichael & Ors v Pittwater Council [2005] NSWLEC 606

A realistic approach to completion of the works was reasonable. The first period, involving finalising Construction Certificate plans, obtaining approval, and completing and certifying the retaining walls and slab foundations, should be completed within 3 months by 7 December 2005. It was not reasonable to require removal of the downstairs kitchen during that period because it would not cause undue disamenity and would provide convenience for expeditious completion. Allowing for the Christmas break and the estimated 4 to 5 months for remaining building works, an overall period of 8 months from the date of the orders was reasonable to complete all works and satisfy the intent of the Orders.

Jurisdiction
Australia
Judgment Date
13 October 2005
Procedural Posture
Class 1 Appeals Against S 121 B Orders and Refusal of a Development Application / Ex Tempore Judgment Making Consent Orders After Negotiations, With Outstanding Issue of Timing for Completion of Works
Outcome
By consent, proceedings Nos. 10504 of 2004 and 10505 of 2004 were dismissed; the two Orders served by the respondent were modified; no order as to costs.
Legal Topics
['s 121 B Orders' 'illegal Building Works' 'dual Occupancy' 'development Application for Alterations and Additions' 'construction Certificate' 'completion Timeframe']
['planning and Environment' 'development Control'] ['s 121 B Orders' 'illegal Building Works' 'dual Occupancy' 'development Application for Alterations and Additions' 'construction Certificate' 'completion Timeframe']

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Procedural Posture

Class 1 Appeals Against S 121 B Orders and Refusal of a Development Application / Ex Tempore Judgment Making Consent Orders After Negotiations, With Outstanding Issue of Timing for Completion of Works

Legal Issues

  1. 1 ['What timeframe should be allowed for completion of incomplete works required by the Orders.' 'Whether the downstairs kitchen should be removed during the first period of works.']

Ratio Decidendi

A realistic approach to completion of the works was reasonable. The first period, involving finalising Construction Certificate plans, obtaining approval, and completing and certifying the retaining walls and slab foundations, should be completed within 3 months by 7 December 2005. It was not reasonable to require removal of the downstairs kitchen during that period because it would not cause undue disamenity and would provide convenience for expeditious completion. Allowing for the Christmas break and the estimated 4 to 5 months for remaining building works, an overall period of 8 months from the date of the orders was reasonable to complete all works and satisfy the intent of the Orders.

Court Disposition

By consent, proceedings Nos. 10504 of 2004 and 10505 of 2004 were dismissed; the two Orders served by the respondent were modified; no order as to costs.

Orders

  • ['Land and Environment Court Proceeding No. 10504 of 2004 and 10505 of 2004 are dismissed.' 'Order NOT0083/04 served on the applicants by the respondent is modified in the form shown at Schedule 1 to these short minutes.' 'Order NOT0082/04 served on the applicants by the respondent is modified in the form shown at...