Anthony Victor Sahade v Mosman Municipal Council [2000] NSWCA 251

Anthony Victor Sahade v Mosman Municipal Council [2000] NSWCA 251

The appeal failed because the proceedings were civil enforcement proceedings concerned with restraining and remedying proven breaches of approval conditions, not with proving a criminal offence or personal commission of breaches by the appellant. There was ample evidence and available inference that the appellant,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 September 2000
Procedural Posture
Appeal Against Injunction in Class 4 Civil Enforcement Proceedings Under the Environmental Planning and Assessment Act 1979 / Appeal From the Land and Environment Court to the New South Wales Court of Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['breach of Development Consent' 'breach of Building Approval' 'injunction' 'amendment of Relief' 'adjournment' 'jones V Dunkel Inference' 'uncertainty and Impossibility of Performance']
['land and Environment' 'environmental Planning and Assessment' 'civil Enforcement'] ['breach of Development Consent' 'breach of Building Approval' 'injunction' 'amendment of Relief' 'adjournment' 'jones V Dunkel Inference' 'uncertainty and Impossibility of Performance']

Source-derived case record

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Procedural Posture

Appeal Against Injunction in Class 4 Civil Enforcement Proceedings Under the Environmental Planning and Assessment Act 1979 / Appeal From the Land and Environment Court to the New South Wales Court of Appeal

Legal Issues

  1. 1 ['Whether the Land and Environment Court erred in granting injunctions restraining and remedying breaches of conditions of a development consent and building approval.' 'Whether the Council should have been permitted to amend the relief sought after closing its case by adding the words "or permitting or suffering" and whether an adjournment should have been granted.' 'Whether the primary judge misused Jones v Dunkel or reversed the onus of proof because the appellant called no evidence.' 'Whether the injunction requiring the appellant to take all reasonable steps to satisfy conditions concerning a boundary wall was impossible to perform or void for uncertainty.']

Ratio Decidendi

The appeal failed because the proceedings were civil enforcement proceedings concerned with restraining and remedying proven breaches of approval conditions, not with proving a criminal offence or personal commission of breaches by the appellant. There was ample evidence and available inference that the appellant, as owner and approval holder, was operating, permitting or suffering the premises to be used in breach of the conditions. The amendment to the relief caused no real prejudice and the refusal of an adjournment disclosed no discretionary error. The primary judge did not reverse the onus of proof and was entitled to draw available inferences from the appellant's failure to give...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']