Glaser v Poole [2010] NSWLEC 143

Glaser v Poole [2010] NSWLEC 143

Because the unauthorised works were substantial rather than technical, were built without development consent and without compliance with mandatory certification and inspection requirements, encroached on neighbouring land, caused substantial privacy and amenity impacts to the Applicants, and raised justified structural safety concerns in a sensitive cliff-top location, the Court exercised its discretion under s 124 to make the declaration and order demolition of most unauthorised development rather than grant the Respondent a mollifying order to pursue regularisation.

Jurisdiction
Australia
Judgment Date
06 August 2010
Procedural Posture
Class 4 Civil Enforcement Proceedings Under Environmental Planning and Assessment Act 1979 S124 / Final Judgment After Hearing
Outcome
Application substantially successful; declaration of illegal building work to be made; demolition ordered for most unauthorised development; Respondent's proposed mollifying order refused; costs reserved.
Legal Topics
['unauthorised Building Works' 'development Consent' 'demolition Orders' 'exercise of Discretion Under S 124' 'mollifying Orders to Permit Regularisation' 'privacy and Amenity Impacts' 'structural Safety']
['environmental Planning and Assessment' 'land and Environment' 'civil Enforcement' 'property Encroachment'] ['unauthorised Building Works' 'development Consent' 'demolition Orders' 'exercise of Discretion Under S 124' 'mollifying Orders to Permit Regularisation' 'privacy and Amenity Impacts' 'structural Safety']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings Under Environmental Planning and Assessment Act 1979 S124 / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether to declare that development on the Respondent's property was illegal because it was built without development consent under the Environmental Planning and Assessment Act 1979." 'Whether the Court should order demolition of the unauthorised works.' 'Whether any demolition order should be mollified or stayed to allow the Respondent to seek development consent and a building certificate.' 'Whether impacts on privacy, amenity, encroachment and structural safety warranted immediate demolition rather than regularisation.']

Ratio Decidendi

Because the unauthorised works were substantial rather than technical, were built without development consent and without compliance with mandatory certification and inspection requirements, encroached on neighbouring land, caused substantial privacy and amenity impacts to the Applicants, and raised justified structural safety concerns in a sensitive cliff-top location, the Court exercised its discretion under s 124 to make the declaration and order demolition of most unauthorised development rather than grant the Respondent a mollifying order to pursue regularisation.

Court Disposition

Application substantially successful; declaration of illegal building work to be made; demolition ordered for most unauthorised development; Respondent's proposed mollifying order refused; costs reserved.

Orders

  • ['Declaration in relation to the carrying out of illegal building work sought by the Applicants ought be made.' "Order for demolition of most of the unauthorised development referred to in the Applicants' Class 4 Application ought be made." "Demolition order to be modified to reflect the judgment, including the...