Duncan v Moore and Ors (No 2) [2000] NSWLEC 28

Duncan v Moore and Ors (No 2) [2000] NSWLEC 28

The proceedings were permanently stayed because there was no evidence that either remaining respondent was likely to offend again, there was little or no practical utility in making orders where the first respondent's posters had been removed and only few remnants were alleged against the second respondent, and the applicant had not established a strong construction case because the election posters were prima facie temporary signs that could fall within cl 25B of the Woollahra Local Environmental Plan and be carried on without consent.

Jurisdiction
Australia
Judgment Date
13 September 1999
Procedural Posture
Class 4 Application Seeking Declaratory and Other Relief Concerning Campaign Posters Fixed to Power Poles / Application for a Stay or Dismissal of the Proceedings
Outcome
Proceedings permanently stayed; costs reserved.
Legal Topics
['permanent Stay of Proceedings' 'declaratory Relief' 'development Consent' 'temporary Signs' 'environmental Planning and Assessment Act 1979' 'woollahra Local Environmental Plan']
['environmental Planning and Assessment' 'land and Environment' 'election Campaign Signage'] ['permanent Stay of Proceedings' 'declaratory Relief' 'development Consent' 'temporary Signs' 'environmental Planning and Assessment Act 1979' 'woollahra Local Environmental Plan']

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Procedural Posture

Class 4 Application Seeking Declaratory and Other Relief Concerning Campaign Posters Fixed to Power Poles / Application for a Stay or Dismissal of the Proceedings

Legal Issues

  1. 1 ['Whether the proceedings should be permanently stayed or dismissed.' 'Whether there was utility in granting declaratory or injunctive relief concerning campaign posters that had been removed or remained only as few remnants.' 'Whether the applicant had shown a basis for restraining the respondents from future erection of posters.' 'Whether election campaign posters were temporary signs under the Woollahra Local Environmental Plan and could be erected without development consent.']

Ratio Decidendi

The proceedings were permanently stayed because there was no evidence that either remaining respondent was likely to offend again, there was little or no practical utility in making orders where the first respondent's posters had been removed and only few remnants were alleged against the second respondent, and the applicant had not established a strong construction case because the election posters were prima facie temporary signs that could fall within cl 25B of the Woollahra Local Environmental Plan and be carried on without consent.

Court Disposition

Proceedings permanently stayed; costs reserved.

Orders

  • ['The exhibits may be returned.' 'The proceedings are permanently stayed.' 'The question of costs is reserved.']