Lechowicz v Commissioner of Fair Trading [2024] NSWCATOD 20

Lechowicz v Commissioner of Fair Trading [2024] NSWCATOD 20

Special circumstances existed because the Applicant sought the owner-builder permit for legitimate non-commercial family reasons connected with her age, medical issues, widowhood and need for support from her only daughter and family, and refusal could cause family hardship. There was no evidence that the proposed dual occupancy was for financial gain, subdivision or sale, and the Applicant's evidence was not challenged. The correct and preferable decision was therefore to set aside the refusal and substitute a decision granting the permit.

Jurisdiction
Australia
Judgment Date
26 February 2024
Procedural Posture
Administrative Review of Decision to Refuse an Owner Builder Permit / Decision After Hearing
Outcome
The Commissioner's decision refusing the owner-builder permit was set aside and the application for an owner-builder permit was granted.
Legal Topics
['owner Builder Permit' 'dual Occupancy' 'special Circumstances' 'correct and Preferable Decision']
['administrative Law' 'home Building Regulation'] ['owner Builder Permit' 'dual Occupancy' 'special Circumstances' 'correct and Preferable Decision']

Case Brief

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Procedural Posture

Administrative Review of Decision to Refuse an Owner Builder Permit / Decision After Hearing

Legal Issues

  1. 1 ['Whether special circumstances existed under s 32(1A) of the Home Building Act 1989 (NSW) to justify issuing an owner-builder permit for residential building work relating to a dual occupancy.' "Whether the Tribunal should set aside the Commissioner's refusal and substitute a decision granting the owner-builder permit." "Whether the respondent's name should be amended to Commissioner of Fair Trading."]

Ratio Decidendi

Special circumstances existed because the Applicant sought the owner-builder permit for legitimate non-commercial family reasons connected with her age, medical issues, widowhood and need for support from her only daughter and family, and refusal could cause family hardship. There was no evidence that the proposed dual occupancy was for financial gain, subdivision or sale, and the Applicant's evidence was not challenged. The correct and preferable decision was therefore to set aside the refusal and substitute a decision granting the permit.

Court Disposition

The Commissioner's decision refusing the owner-builder permit was set aside and the application for an owner-builder permit was granted.

Orders

  • ["The decision by the Commissioner of Fair Trading to refuse the Applicant's application for an owner-building permit is set aside." "The decision is made that the Applicant's application for an owner-building permit is granted." 'The Respondent\'s name for the purposes of this proceeding is amended to "Commissioner...