Barton v Orange City Council [2008] NSWLEC 104

Barton v Orange City Council [2008] NSWLEC 104

The development consent was invalid as the council failed to give proper, genuine, or realistic consideration to mandatory relevant matters required by law. The Court, after considering all discretionary factors, hardship to both parties, and delay, exercised its discretion to order demolition of the extension. A stay of six months was granted to allow Mrs Westgeest to make arrangements.

Parties
Applicant: Gregory John Barton; Applicant: Amanda Wendy Barton; First Respondent: Orange City Council; Second Respondent: Kerryn Westgeest
Jurisdiction
Australia
Judgment Date
06 March 2008
Procedural Posture
Civil / Judgment
Outcome
Declaration of invalidity of development consent and order for demolition granted, subject to a six-month stay and further orders as to costs.
Legal Topics
Development Consent, Environmental Planning and Assessment Act 1979 (nsw), Judicial Review, Discretionary Remedies, Demolition Orders
Planning and Environment Development Consent Environmental Planning and Assessment Act 1979 (nsw) Judicial Review Discretionary Remedies Demolition Orders

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Parties

Gregory John Barton

Applicant

Amanda Wendy Barton

Applicant

Orange City Council

First Respondent

Kerryn Westgeest

Second Respondent

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the development consent granted was invalid
  2. 2 Whether a declaration of invalidity should be made
  3. 3 Whether a demolition order should be made

Ratio Decidendi

The development consent was invalid as the council failed to give proper, genuine, or realistic consideration to mandatory relevant matters required by law. The Court, after considering all discretionary factors, hardship to both parties, and delay, exercised its discretion to order demolition of the extension. A stay of six months was granted to allow Mrs Westgeest to make arrangements.

Court Disposition

Declaration of invalidity of development consent and order for demolition granted, subject to a six-month stay and further orders as to costs.

Orders

  • Declaration that the development consent is invalid.
  • Order that Mrs Westgeest be restrained from carrying out further work under the invalid consent.