Australia, June 24 -- New South Wales Land and Environment Court issued text of the following judgement on May 23:

1. KIRK JA: I agree with Griffiths AJA.

2. FREE JA: I agree with Griffiths AJA.

3. GRIFFITHS AJA: The applicants (Mr and Mrs Sader) seek leave to appeal from orders made by the primary judge (Pritchard J). Her Honour declined to make an order for costs in relation to Class 4 proceedings in the Land and Environment Court (LEC), after the applicants' judicial review proceeding had been dismissed by consent.

4. Orders were made for a concurrent hearing of the application for leave to appeal and any subsequent appeal.

5. For the following reasons, leave to appeal should be refused, with costs.

Background matters

6. The applicants and the first respondent (Mr Elgammal) live in adjacent properties in Connells Point, NSW. Their properties overlook the Georges River. (The second respondent, who did not actively participate, is the certifier for the development. The third respondent, the State, filed a submitting appearance.)

7. The development of Mr Elgammal's land has given rise to a series of litigious disputes. First, there was a dispute as to whether development purportedly carried out by Mr Elgammal with reference to a Construction Certificate dated 17 November 2021 (CC1.0) was consistent with the underlying development consent. CC1.0 incorporated a 12-page landscape plan dated 21 October 2021 and prepared by Dapple Designs. I shall refer to this landscape plan as Landscape Plan Rev D.

8. In August 2022, in proceedings brought by the Saders against Mr Elgammal, Duggan J held that CC1.0 was invalid because it was inconsistent with the development consent. Her Honour found that the excavation of natural rock was unauthorised, as were concrete slabs shown in Landscape Plan Rev D (see Sader v Elgammal [2022] NSWLEC 107 (2022 Sader v Elgammal proceedings)). On 30 September 2022, Duggan J ordered that the concrete slabs be demolished.

9. On 3 November 2022, it appears that two further construction certificates were obtained by Mr Elgammal, both bearing that date. The first did not contain any reference to landscape plans. The second (CC2.0) referred to Landscaping Plans and Specifications prepared by Dapple Designs and dated 21 October 2022. I shall refer to this material as Landscape Plan Rev F. Landscape Plan Rev F was not stamped.

10. The Saders considered that Landscape Plan Rev F showed concrete slabs overhanging the rock face which they said was inconsistent with the orders made by Duggan J. Accordingly, they brought fresh Class 4 judicial review proceedings against Mr Elgammal and others, commencing on 1 February 2023 (Class 4 proceedings).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196f52d4cecba2f6d8d6afcd)

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