Alamein & Anor v Pittwater Council [2012] NSWLEC 1194

Alamein & Anor v Pittwater Council [2012] NSWLEC 1194

On the site inspection and expert evidence, the over-excavation and subfloor issues could be addressed by specified remedial works, including backfilling, construction of piers, enclosure with timber battens, and further approval processes where required. Those works would prevent the No. 37 subfloor area being used for habitable purposes, allow No. 35 works to proceed subject to required approvals, and make the consent orders lawful and appropriate. The appeals were therefore upheld in part with the stop work orders revoked and building certificates to issue only after completion and satisfaction as to the specified works.

Jurisdiction
Australia
Judgment Date
20 July 2012
Procedural Posture
Class 1 Appeals Against Stop Work Orders and Deemed Refusals of Building Certificate Applications / Hearing of Four Appeals Heard Together; Consent Orders Sought
Outcome
Appeals upheld in part
Legal Topics
['unauthorised Excavation' 'stop Work Orders' 'complying Development Certificate' 'development Consent' 'building Certificate' 'consent Orders']
['planning and Environment' 'development Control' 'building Certificates'] ['unauthorised Excavation' 'stop Work Orders' 'complying Development Certificate' 'development Consent' 'building Certificate' 'consent Orders']

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

Class 1 Appeals Against Stop Work Orders and Deemed Refusals of Building Certificate Applications / Hearing of Four Appeals Heard Together; Consent Orders Sought

Legal Issues

  1. 1 ['Whether orders issued under item 19 of section 121B of the Environmental Planning and Assessment Act 1979 requiring cessation of building works at No. 35 and No. 37 Seaview Avenue should be revoked or modified.' 'Whether building certificates should issue for works at No. 35 and No. 37 Seaview Avenue after specified remedial works.' 'Whether over-excavated areas and subfloor areas could be treated so that the developments could proceed consistently with the applicable consent or Complying Development Certificate.' 'Whether subfloor areas at No. 37 should be rendered non-habitable.']

Ratio Decidendi

On the site inspection and expert evidence, the over-excavation and subfloor issues could be addressed by specified remedial works, including backfilling, construction of piers, enclosure with timber battens, and further approval processes where required. Those works would prevent the No. 37 subfloor area being used for habitable purposes, allow No. 35 works to proceed subject to required approvals, and make the consent orders lawful and appropriate. The appeals were therefore upheld in part with the stop work orders revoked and building certificates to issue only after completion and satisfaction as to the specified works.

Court Disposition

Appeals upheld in part

Orders

  • ['In appeal 10411 of 2012, the appeal is upheld in part and the order issued on 4 April 2012 under item 19 of section 121B of the Environmental Planning and Assessment Act 1979 for No. 37 Seaview Avenue, Newport is revoked.' 'In appeal 10411 of 2012, the applicant must carry out or cause to be carried out the works...