Background
Sutherland Shire Council brought Class 4 civil-enforcement proceedings concerning extensive demolition and excavation at 289 Woolooware Road, Burraneer. The works included removing internal walls, floors and slabs, excavating rock and soil—sometimes to depths exceeding 2.5 metres—and working close to a natural waterbody. The Council alleged that no development consent authorised the works.
The proceedings were resolved by consent against Paul Shenouda and Sheffield Estate Holdings Pty Ltd, but Joseph Bechara contested the claim that he carried out or was responsible for the works. Although Bechara attended the second day of the hearing, he did not give sworn evidence or cross-examine the Council’s witnesses. The Court rejected his contention that he had not received the Council’s evidence, finding that substituted service had provided him ample time to respond.
The Court’s Holding
Pepper J found that the affirmative evidence established that Bechara either carried out the unauthorised works himself or was responsible for them through people working at his direction. Council officers and SafeWork NSW records identified him as the contractor or principal contractor, he communicated about site operations and structural-support work, and a neighbour reported that Bechara said he was carrying out work at the property. His decision not to testify left that evidence unchallenged.
The earthworks were neither exempt development nor ancillary to authorised development: they exceeded applicable limits for excavation depth and structural support and occurred within 40 metres of a natural waterbody. The demolition also was not exempt and was unsupported by any development consent. Both therefore contravened s 4.2(1) of the Environmental Planning and Assessment Act 1979.
The Court declared Bechara’s earthworks and partial demolition unlawful, permanently restrained him and those acting for him from undertaking further development at the property without consent, and ordered him to pay the Council’s costs. The restraint excepted specified erosion-control and demolition works, as well as exempt development; it did not affirmatively require Bechara to perform those remedial works.
Key Takeaways
- A person may breach s 4.2 by directing or engaging others to undertake development without the required consent, even if the evidence does not show that person physically performing the work.
- Earthworks exceeding exempt-development limits or occurring too close to a natural waterbody require consent unless another applicable exception applies.
- A permanent restraint may permit specified remedial work as an exception without imposing an affirmative obligation on the restrained party to perform it.
Why It Matters
The decision illustrates how councils may establish responsibility for unauthorised development through site observations, communications, regulatory records and evidence identifying the person controlling contractors and access. It also distinguishes between court-ordered performance of remediation and an injunction that merely allows specified remedial work to occur.
The Court considered declaratory relief appropriate because Bechara’s repeated noncompliance and the safety concerns that prompted SafeWork NSW’s involvement warranted a public denunciation with deterrent and educative value.