Nader v Sutherland Shire Council

[2008] NSWCA 265

NSW Court of Appeal

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Interrogate

Catchwords

1. Local Government
2. › Building control
3. › Development consent
4. › Construction of development consent
5. › Whether consent for two-storey dwelling authorised use of roof as recreation area
6. › Whether Building Code of Australia conditions could expand scope of consent
7. › Environmental Planning and Assessment Act 1979 (NSW), s 124
1. Local Government
2. › Building control
3. › Enforcement
4. › Demolition orders
5. › Discretion to order demolition of unauthorised works
6. › Guidelines in Warringah Shire Council v Sedevcic
7. › Whether discretion miscarried
8. › Environmental Planning and Assessment Act 1979 (NSW), s 124
1. Evidence
2. › Privileged communications
3. › Without prejudice communications
4. › Exception where exclusion would mislead court
5. › Whether s 131(2)(g) exception applied
6. › Evidence Act 1995 (NSW), s 131(2)(g)
1. Appeal
2. › Standard of appellate review
3. › Discretionary judgments
4. › Whether primary judge failed to take into account relevant considerations or took into account irrelevant considerations

Quick Take

A development consent for a 'two-storey dwelling' does not authorise use of the roof as a recreation area where the approved plans do not include a roof plan showing such use, and a general condition requiring compliance with the Building Code of Australia does not expand the scope of the consent beyond the specific approved plans. Where conflicting provisions exist in a development consent, the specific condition prevails over the general, and conditions reproducing general legal requirements do not override particular specifications in approved plans.