McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 85

McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 85

The applicant did not establish a serious question to be tried. The main asserted change of circumstances failed because Council tendered the modified development consent and approved modified plans showing that the internal walls no longer had to be retained. The evidence did not establish a realistic threat that external walls required to be retained would be demolished. The planning principle relied on by the applicant was not relevant to these Class 4 proceedings and did not justify reopening the earlier interlocutory decision.

Jurisdiction
Australia
Judgment Date
07 June 2013
Procedural Posture
Class 4 Civil Enforcement and Judicial Review Proceedings / Notice of Motion for Urgent Interlocutory Injunction
Outcome
Applicant's notice of motion filed on 6 June 2013 dismissed with costs.
Legal Topics
['interlocutory Injunctions' 'repeated Interlocutory Applications' 'development Consent Modification' 'demolition Works' 'serious Question to Be Tried']
['environmental Planning Law' 'civil Procedure'] ['interlocutory Injunctions' 'repeated Interlocutory Applications' 'development Consent Modification' 'demolition Works' 'serious Question to Be Tried']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement and Judicial Review Proceedings / Notice of Motion for Urgent Interlocutory Injunction

Legal Issues

  1. 1 ['Whether a third urgent interlocutory injunction motion to stop demolition should be entertained after two earlier unsuccessful motions.' 'Whether modified development consent plans permitted demolition of internal walls that the applicant said were required to be retained.' 'Whether there was a realistic threat that external walls required to be retained would be demolished.' 'Whether the applicant established a serious question to be tried.']

Ratio Decidendi

The applicant did not establish a serious question to be tried. The main asserted change of circumstances failed because Council tendered the modified development consent and approved modified plans showing that the internal walls no longer had to be retained. The evidence did not establish a realistic threat that external walls required to be retained would be demolished. The planning principle relied on by the applicant was not relevant to these Class 4 proceedings and did not justify reopening the earlier interlocutory decision.

Court Disposition

Applicant's notice of motion filed on 6 June 2013 dismissed with costs.

Orders

  • ["Applicant's notice of motion filed on 6 June 2013 dismissed with costs." 'The exhibits may be returned.']