Mason v Blue Mountains City Council [2005] NSWLEC 313

Mason v Blue Mountains City Council [2005] NSWLEC 313

In the absence of convincing evidence about the effectiveness and maintenance of fire retardant treatments for brushwood fencing, and given the absolute statutory prohibition on such fencing in bushfire-prone areas, the Court's discretion is to be exercised in favour of public safety by ordering removal of the fence.

Jurisdiction
Australia
Judgment Date
26 May 2005
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
['bushfire Protection' 'fence Demolition' 'development Control Plans']
['planning Law' 'environmental Law'] ['bushfire Protection' 'fence Demolition' 'development Control Plans']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether brushwood fencing can be sufficiently fire retardant to avoid unacceptable bushfire risk' "Whether the Court should set aside the Council's order requiring demolition of the brushwood fence"]

Ratio Decidendi

In the absence of convincing evidence about the effectiveness and maintenance of fire retardant treatments for brushwood fencing, and given the absolute statutory prohibition on such fencing in bushfire-prone areas, the Court's discretion is to be exercised in favour of public safety by ordering removal of the fence.

Court Disposition

appeal dismissed

Orders

  • ["The appeal against the council's demolition order is dismissed; the demolition order is confirmed." 'Applicants have 90 days from date of order to remove the brushwood fence.' 'Directions given for filing revised plans and conditions for a replacement masonry fence, with liberty to re-list if parties cannot agree.']