Hudak v Council of the Municipality of Waverley [1989] NSWLEC 190

Hudak v Council of the Municipality of Waverley [1989] NSWLEC 190

The residential flat building had not been occupied since 1980, was dilapidated, unsightly and dangerous, and its condition was prejudicial to neighbouring properties and inhabitants. Existing use rights were presumed abandoned because actual use had ceased for more than twelve months, and Mr Hudak did not displace that presumption: his decision not to use or repair the building was for a collateral property dispute purpose, not for a reason directly connected with its residential flat building use. Because the existing use rights were abandoned, the prohibited residential flat building use could not continue and the s.317B notice should not be set aside or modified.

Jurisdiction
Australia
Judgment Date
04 May 1989
Procedural Posture
Class 2 Appeal Against a Notice Under S.317 B(1) of the Local Government Act and Class 4 Application for Declarations Concerning Building Approval and Existing Use Rights / Judgment and Orders
Outcome
The Class 2 appeal was dismissed; the Court declared in the Class 4 proceedings that the residential flat building use had been abandoned; no order was made for costs.
Legal Topics
['demolition Notice' 'existing Use Rights' 'abandonment of Existing Use' 'building Approval' 'declaratory Relief']
['planning and Environment' 'local Government' 'land Use'] ['demolition Notice' 'existing Use Rights' 'abandonment of Existing Use' 'building Approval' 'declaratory Relief']

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Procedural Posture

Class 2 Appeal Against a Notice Under S.317 B(1) of the Local Government Act and Class 4 Application for Declarations Concerning Building Approval and Existing Use Rights / Judgment and Orders

Legal Issues

  1. 1 ['Whether the building was in such a dilapidated or unsightly condition as to be prejudicial to neighbouring properties and inhabitants.' 'Whether existing use rights for use of the building as a residential flat building had been abandoned.' 'Whether the 1974 or 1975 building approvals were void or whether building work had been substantially commenced.' 'Whether the s.317B notice should be set aside or modified.']

Ratio Decidendi

The residential flat building had not been occupied since 1980, was dilapidated, unsightly and dangerous, and its condition was prejudicial to neighbouring properties and inhabitants. Existing use rights were presumed abandoned because actual use had ceased for more than twelve months, and Mr Hudak did not displace that presumption: his decision not to use or repair the building was for a collateral property dispute purpose, not for a reason directly connected with its residential flat building use. Because the existing use rights were abandoned, the prohibited residential flat building use could not continue and the s.317B notice should not be set aside or modified.

Court Disposition

The Class 2 appeal was dismissed; the Court declared in the Class 4 proceedings that the residential flat building use had been abandoned; no order was made for costs.

Orders

  • ['In proceedings No. 20278/86 the appeal is dismissed.' 'Mr Hudak within a period of sixty days from the date of this order demolish the two storey brick residential flat building on the land known as 46 Beaumont Street, Rose Bay.' 'In proceedings No. 40212/88 I declare that the use of the residential flat building...