Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67

Waverley Council v Ash Samadi and Ors [2020] NSWLEC 67

The Stop Work Order was validly served by email as accepted by the Respondent’s conduct; immediate compliance was reasonable because the order maintained the status quo following a prior stop work order; reasons given were sufficient; Council had factual basis for issuing the Stop Work Order. The Respondent breached the Stop Work Order by carrying out construction work not authorised or excepted. The 2020 CDC was invalid as it authorised development contravening BCA cl 3.7.2.7 regarding boundary distances, which could not be remedied by performance-based solutions. Failure to comply with orders for entry constituted a breach, and Council’s requests for declarations served a legitimate...

Jurisdiction
Australia
Judgment Date
23 June 2020
Procedural Posture
Civil Enforcement Proceedings / Judgment at First Instance
Outcome
Declarations and orders for breaches granted; 2020 CDC declared invalid.
Legal Topics
['development Control Orders' 'service of Statutory Notices' 'validity of Complying Development Certificates' 'building Code of Australia Compliance' 'stop Work Orders' 'orders for Entry']
['environmental and Planning Law'] ['development Control Orders' 'service of Statutory Notices' 'validity of Complying Development Certificates' 'building Code of Australia Compliance' 'stop Work Orders' 'orders for Entry']

Case Brief

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Procedural Posture

Civil Enforcement Proceedings / Judgment at First Instance

Legal Issues

  1. 1 ['Was the 30 January 2020 Stop Work Order validly served?' 'Was the period for compliance with the Stop Work Order ‘reasonable’?' 'Were adequate reasons given for the Stop Work Order?' 'Was there sufficient factual foundation for issuance of Stop Work Order?' 'Did the Respondent breach the Stop Work Order?' 'Is the 2020 CDC (Complying Development Certificate) invalid due to breach of Building Code of Australia requirements?' 'Did the Respondent breach orders for entry by failing to allow inspection?']

Ratio Decidendi

The Stop Work Order was validly served by email as accepted by the Respondent’s conduct; immediate compliance was reasonable because the order maintained the status quo following a prior stop work order; reasons given were sufficient; Council had factual basis for issuing the Stop Work Order. The Respondent breached the Stop Work Order by carrying out construction work not authorised or excepted. The 2020 CDC was invalid as it authorised development contravening BCA cl 3.7.2.7 regarding boundary distances, which could not be remedied by performance-based solutions. Failure to comply with orders for entry constituted a breach, and Council’s requests for declarations served a legitimate...

Court Disposition

Declarations and orders for breaches granted; 2020 CDC declared invalid.

Orders

  • ['Declaration that the Respondent breached s 9.37 EP&A Act by carrying out development in breach of development control order dated 30 January 2020.' 'Declaration that Complying Development Certificate No. 2019/424/02 Mod (dated 7 January 2020) is invalid and of no effect.' 'Declaration that Respondent carried out...