Mandy Stevens v. Gregory Ian Cleary [1998] NSWLEC 125

Mandy Stevens v. Gregory Ian Cleary [1998] NSWLEC 125

Although the log wall required approval, it was approved by Council on 14 April 1997 as part of the respondent's overall building approval and was constructed with consent. Condition 7 did not apply to the log wall because the wall was a separate structure, not a structural member of the house, and cl 31 of the Local Government (Approvals) Regulation 1993 was not breached. While some recent problems with the brick wall were causally linked to works on the respondent's land, the applicant failed to establish relevant illegality tainting those works, so the amended Class 4 application failed.

Jurisdiction
Australia
Judgment Date
24 July 1998
Procedural Posture
Class 4 Proceedings / Judgment on Amended Class 4 Application After Hearing
Outcome
Application dismissed with costs.
Legal Topics
['retaining Wall Approval' 'council Building Approval' 'local Government Act 1993 S 68' 'local Government (approvals) Regulation 1993 Cl 31' 'causation of Damage to Neighbouring Property']
['land and Environment' 'local Government Approvals' 'building Regulation'] ['retaining Wall Approval' 'council Building Approval' 'local Government Act 1993 S 68' 'local Government (approvals) Regulation 1993 Cl 31' 'causation of Damage to Neighbouring Property']

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Procedural Posture

Class 4 Proceedings / Judgment on Amended Class 4 Application After Hearing

Legal Issues

  1. 1 ['Whether the log retaining wall required approval under the Local Government Act 1993.' 'Whether the log retaining wall was approved by Council as part of the 14 April 1997 building approval.' "Whether condition 7 of Council's approval required structural engineer's details for the log wall before commencement of building work and was breached." 'Whether cl 31 of the Local Government (Approvals) Regulation 1993 required engineering drawings or details for the log wall and was breached.' "Whether works on the respondent's land, particularly the log wall, caused damage to the applicant's brick wall sufficient to support relief."]

Ratio Decidendi

Although the log wall required approval, it was approved by Council on 14 April 1997 as part of the respondent's overall building approval and was constructed with consent. Condition 7 did not apply to the log wall because the wall was a separate structure, not a structural member of the house, and cl 31 of the Local Government (Approvals) Regulation 1993 was not breached. While some recent problems with the brick wall were causally linked to works on the respondent's land, the applicant failed to establish relevant illegality tainting those works, so the amended Class 4 application failed.

Court Disposition

Application dismissed with costs.

Orders

  • ['Application dismissed.' "The Applicant should pay the Respondent's costs." 'All exhibits may be returned.']