Hunters Hill Council v Hanan Faress [2006] NSWLEC 214

Hunters Hill Council v Hanan Faress [2006] NSWLEC 214

Because the expert evidence established that temporary raking props, backfilling, waterproof sheeting, pumps, tarpaulins or membrane, and a safety fence were feasible, sufficient and not cost prohibitive to protect safety, stability and the environment, the Court refused to permit the more substantial roof and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 April 2006
Procedural Posture
Class 4 Proceedings; Notice of Motion to Vary Interlocutory Orders / Interlocutory Application Pending Determination of Development Application
Outcome
Notice of motion allowed in part; interlocutory orders varied to require minimum temporary protective works only, proceedings adjourned, and the Council released from its undertaking as to damages from 3 April 2006.
Legal Topics
['variation of Interlocutory Injunction' 'development Without Consent' 'development Application Pending Determination' 'temporary Safety and Environmental Protection Works' 'undertaking as to Damages']
['planning and Environment Law' 'injunctions'] ['variation of Interlocutory Injunction' 'development Without Consent' 'development Application Pending Determination' 'temporary Safety and Environmental Protection Works' 'undertaking as to Damages']

Source-derived case record

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Procedural Posture

Class 4 Proceedings; Notice of Motion to Vary Interlocutory Orders / Interlocutory Application Pending Determination of Development Application

Legal Issues

  1. 1 ['Whether interlocutory orders restraining further works should be varied to permit the respondent to install a roof, safety fence and concrete walls pending determination of a development application.' 'Whether only minimum temporary works required for safety, stability and environmental protection should be permitted while the development application is assessed.' 'Whether the class 4 proceedings should be adjourned pending final determination of the development application.' 'Whether the Council should be released from its undertaking as to damages during the adjournment.']

Ratio Decidendi

Because the expert evidence established that temporary raking props, backfilling, waterproof sheeting, pumps, tarpaulins or membrane, and a safety fence were feasible, sufficient and not cost prohibitive to protect safety, stability and the environment, the Court refused to permit the more substantial roof and concrete wall works that were the subject of the pending development application. The interlocutory orders were varied only to require those minimum temporary works, the proceedings were adjourned pending determination of the development application, and the Council was released from its undertaking as to damages from 3 April 2006.

Court Disposition

Notice of motion allowed in part; interlocutory orders varied to require minimum temporary protective works only, proceedings adjourned, and the Council released from its undertaking as to damages from 3 April 2006.

Orders

  • ['The respondent forthwith carry out or cause to be carried out temporary raking props to the masonry walls on the west and east side of the building at 10A Point Street, Woolwich so as to ensure structural stability pending final determination of the development application.' 'The respondent forthwith backfill and...