Woollahra Municipal Council v Sahade [2012] NSWLEC 76

Woollahra Municipal Council v Sahade [2012] NSWLEC 76

The stairway was a pathway associated with the front verandah and pool terrace and met the development standards in cl 2.56, but it was not exempt development because its construction involved removal of the original pencil pine screen required by development consent DA 558/98, contrary to cl 1.16(3)(b) of the SEPP. Because Mrs Sahade constructed the stairway without development consent required by the LEP and s 76A of the EPA Act, a breach was established. The breach was not merely technical, raised real environmental impact issues, and should be remedied by requiring removal so that any proposed stairway can be assessed through the development application process.

Jurisdiction
Australia
Judgment Date
18 April 2012
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment; Ex Tempore Judgment With Final Orders
Outcome
Declaration made that the stairway was constructed in breach of s 76A of the Environmental Planning and Assessment Act 1979; respondent ordered to demolish the stairway; costs reserved.
Legal Topics
['exempt Development' 'development Consent' 'construction of Stairway' 'tree Removal' 'mandatory Injunction' 'declarations']
['planning and Environment Law' 'civil Enforcement'] ['exempt Development' 'development Consent' 'construction of Stairway' 'tree Removal' 'mandatory Injunction' 'declarations']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment; Ex Tempore Judgment With Final Orders

Legal Issues

  1. 1 ['Whether the timber stairway was a pathway within cl 2.55 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' 'Whether the stairway was associated with a terrace or verandah for the purposes of cl 2.55 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' 'Whether the stairway met the development standards in cl 2.56 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' 'Whether the stairway complied with cl 1.16(3)(b) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, given the removal of the pencil pine screen.' 'Whether the construction of the stairway without development consent breached s 76A of the Environmental Planning and Assessment Act 1979.' 'Whether the Court should order removal of the stairway to remedy the breach.']

Ratio Decidendi

The stairway was a pathway associated with the front verandah and pool terrace and met the development standards in cl 2.56, but it was not exempt development because its construction involved removal of the original pencil pine screen required by development consent DA 558/98, contrary to cl 1.16(3)(b) of the SEPP. Because Mrs Sahade constructed the stairway without development consent required by the LEP and s 76A of the EPA Act, a breach was established. The breach was not merely technical, raised real environmental impact issues, and should be remedied by requiring removal so that any proposed stairway can be assessed through the development application process.

Court Disposition

Declaration made that the stairway was constructed in breach of s 76A of the Environmental Planning and Assessment Act 1979; respondent ordered to demolish the stairway; costs reserved.

Orders

  • ['Declares that the timber stairway and associated works, including the planter box, constructed by or for the respondent, Rita Sahade, within Strata Plan 62022 and upon the land known as 84-86 Wolseley Road, Point Piper, has been constructed in breach of s 76A of the Environmental Planning and Assessment Act 1979.'...