Canterbury City Council v Mihalopoulos [2010] NSWLEC 248

Canterbury City Council v Mihalopoulos [2010] NSWLEC 248

The works were undertaken without the required development consent and after the respondents had been notified that consent was required and had not been granted; the breaches were not merely technical, had significant adverse impacts on the privacy and amenity of the adjoining property, were unlikely to be regularised by further consent, and the respondents' conduct, particularly that of Mr Mihalopoulos, showed flagrant disregard for the law. Those factors warranted declaratory relief and orders for demolition, removal and remedial construction notwithstanding the impact of demolition.

Jurisdiction
Australia
Judgment Date
30 November 2010
Procedural Posture
Civil Enforcement Proceedings Under S 124 of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Hearing; Proceedings Heard Ex Parte Against the First Respondent
Outcome
Declaration and demolition, removal, remedial construction and costs orders made in favour of the applicant.
Legal Topics
['unapproved Building Works' 'development Consent' 'demolition Orders' 'exercise of Discretion Under S 124 of the Environmental Planning and Assessment Act 1979' 'residential Dwelling Construction']
['environmental Planning and Assessment' 'land and Environment' 'civil Enforcement'] ['unapproved Building Works' 'development Consent' 'demolition Orders' 'exercise of Discretion Under S 124 of the Environmental Planning and Assessment Act 1979' 'residential Dwelling Construction']

Case Brief

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Procedural Posture

Civil Enforcement Proceedings Under S 124 of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment After Hearing; Proceedings Heard Ex Parte Against the First Respondent

Legal Issues

  1. 1 ['Whether the structures erected at 31 Clarke Street, Earlwood were carried out otherwise than in accordance with development consent DA252/2007 as modified and contrary to the Environmental Planning and Assessment Act 1979.' 'Whether the Court should exercise its discretion under s 124 of the Environmental Planning and Assessment Act 1979 to grant declaratory relief and order demolition, removal and remedial construction of the unlawful works.']

Ratio Decidendi

The works were undertaken without the required development consent and after the respondents had been notified that consent was required and had not been granted; the breaches were not merely technical, had significant adverse impacts on the privacy and amenity of the adjoining property, were unlikely to be regularised by further consent, and the respondents' conduct, particularly that of Mr Mihalopoulos, showed flagrant disregard for the law. Those factors warranted declaratory relief and orders for demolition, removal and remedial construction notwithstanding the impact of demolition.

Court Disposition

Declaration and demolition, removal, remedial construction and costs orders made in favour of the applicant.

Orders

  • ['Declared that specified structures erected on Lot 3 in DP 10367, 31 Clarke Street, Earlwood were erected otherwise than in accordance with development consent DA252/2007 granted on 14 September 2007 and as modified in DA252/2007/C on 30 October 2008, contrary to the Environmental Planning and Assessment Act 1979.'...