Smith v Wyong Shire Council

Smith v Wyong Shire Council - [2008] NSWLEC 115 - NSWLEC 2008 case summary — Zoe

[20]

11 In relation to whether the work was lawful, the Applicant's counsel correctly and appropriately referred me to the potential conflict between s 95(4) and s 81A of the EPA Act. Section 81A(2)(a) requires that the erection of a building in accordance with a development consent must not be commenced until a construction certificate for the work has been issued by the consent authority. The issue of whether the erection of buildings meant that demolition of a building required a construction certificate was considered in Sharp v Hunters Hill Council (2002) 120 LGERA 155. Bignold J held at [58] that the demolition of a building is not a matter which falls within the ambit of a construction certificate in terms of s 109C(1)(b) and s 81A(5). It was not therefore a matter which required a construction certificate under s 81A. Judicial comity suggests that a judge at first instance should follow the decision of another judge at first instance unless he or she considers the decision is wrong; Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820. I consider I should adopt the finding of Bignold J in Sharp. Accordingly the demolition work undertaken by the Applicant's contractors on 12 and 13 September was lawful. Is there a controversy? 12 It is relevant to the Court's consideration of whether to make a declaration that there be a controversy, in other words, that the Court is not being asked to consider a hypothetical circumstance. In this case the Applicant wrote to the Council by letter dated 9 November 2007 (exhibit 2) seeking confirmation that the development consent had been physically commenced following the work on 12 and 13 September 2007. There has been no response to that letter. I note that the Council has filed a submitting appearance and is therefore aware of these proceedings but has chosen not to appear. I consider there is a controversy in the circumstances so that the making of a declaration has utility. Should a declaration issue? 13 In Williams I held that it was appropriate that a declaration be issued in similar circumstances and I adopt what I said in that case at [13] - [17].

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