Robert Easton v. Shoalhaven City Council [1998] NSWLEC 78

Robert Easton v. Shoalhaven City Council [1998] NSWLEC 78

Council failed to notify the applicants of the building application although the notification policy applied, no exemption applied, and the evidence did not show that Council formed the opinion required by s 114 of the Local Government Act 1993. The failure was a serious denial of natural justice and breached the applicants' common law and statutory notification rights, making building approval 98/1462 void. In exercising discretion, the Court balanced the innocence of both the applicants and Keyseem, Keyseem's expenditure and opportunity to regularise the position, and the absence of any objection to the house renovations, and therefore declared the approval void and ordered demolition...

Jurisdiction
Australia
Judgment Date
15 December 1998
Procedural Posture
Class 4 Proceedings Challenging Building Approval 98/1462 / Final Hearing and Judgment
Outcome
Application allowed in part; building approval declared void and conditional demolition order made; costs reserved.
Legal Topics
['building Approval' 'notification of Adjoining Owners' 'legitimate Expectation' 'natural Justice' 'validity of Approval' 'mandatory Relief' 'demolition Order']
['planning and Environment Law' 'local Government' 'administrative Law'] ['building Approval' 'notification of Adjoining Owners' 'legitimate Expectation' 'natural Justice' 'validity of Approval' 'mandatory Relief' 'demolition Order']

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Procedural Posture

Class 4 Proceedings Challenging Building Approval 98/1462 / Final Hearing and Judgment

Legal Issues

  1. 1 ["Whether Council failed to notify the applicants of the building application as required by s 114 of the Local Government Act 1993 and Council's notification policy." "Whether the failure to notify breached the applicants' common law legitimate expectation and natural justice rights." 'Whether building approval 98/1462 should be declared void.' "What discretionary relief, including demolition or restraint, should be ordered given Keyseem's lack of fault and expenditure on the garage."]

Ratio Decidendi

Council failed to notify the applicants of the building application although the notification policy applied, no exemption applied, and the evidence did not show that Council formed the opinion required by s 114 of the Local Government Act 1993. The failure was a serious denial of natural justice and breached the applicants' common law and statutory notification rights, making building approval 98/1462 void. In exercising discretion, the Court balanced the innocence of both the applicants and Keyseem, Keyseem's expenditure and opportunity to regularise the position, and the absence of any objection to the house renovations, and therefore declared the approval void and ordered demolition...

Court Disposition

Application allowed in part; building approval declared void and conditional demolition order made; costs reserved.

Orders

  • ['Declares that building approval 98/1462 granted on 7 April 1998 by the first respondent to the second respondent for "dwelling extensions" at lot 9 DP 201727, 71 Seaside Parade, Dolphin Point, is void.' 'Orders that the third respondent Keyseem Pty Limited cause the demolition of the garage at the subject...