Mosman Municipal Council v David Kelly [2007] NSWLEC 90

Mosman Municipal Council v David Kelly [2007] NSWLEC 90

The two-storey garage structure was development permissible only with development consent under the Mosman Local Environmental Plan 1998, was not exempt development, and no development consent had been obtained. The evidence established on the balance of probabilities that the respondent, as owner, constructed or caused the structure to be constructed. The breach of s 76A of the Environmental Planning and Assessment Act 1979 was not merely trivial or technical, and the appropriate exercise of discretion was to order demolition, with a stay to allow the respondent an opportunity to apply to the Court or seek to regularise the structure.

Jurisdiction
Australia
Judgment Date
19 February 2007
Procedural Posture
Class 4 Civil Enforcement Proceedings / Ex Tempore Judgment Heard Ex Parte
Outcome
Application granted; demolition order made with a 60-day stay from service; respondent ordered to pay the applicant's costs as agreed or assessed.
Legal Topics
['development Without Consent' 'demolition Order' 'substituted Service' 'ex Parte Hearing' 'stay of Orders']
['environmental Planning and Development Control' 'civil Enforcement'] ['development Without Consent' 'demolition Order' 'substituted Service' 'ex Parte Hearing' 'stay of Orders']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Ex Tempore Judgment Heard Ex Parte

Legal Issues

  1. 1 ['Whether the two-storey garage structure at 91 Ourimbah Road, Mosman required development consent under the Environmental Planning and Assessment Act 1979 and Mosman Local Environmental Plan 1998.' 'Whether development consent had been obtained for the two-storey garage structure.' 'Whether the respondent constructed or caused to be constructed the two-storey garage structure.' "Whether the Court should exercise its discretion to order demolition in the respondent's absence and stay the order."]

Ratio Decidendi

The two-storey garage structure was development permissible only with development consent under the Mosman Local Environmental Plan 1998, was not exempt development, and no development consent had been obtained. The evidence established on the balance of probabilities that the respondent, as owner, constructed or caused the structure to be constructed. The breach of s 76A of the Environmental Planning and Assessment Act 1979 was not merely trivial or technical, and the appropriate exercise of discretion was to order demolition, with a stay to allow the respondent an opportunity to apply to the Court or seek to regularise the structure.

Court Disposition

Application granted; demolition order made with a 60-day stay from service; respondent ordered to pay the applicant's costs as agreed or assessed.

Orders

  • ['The respondent demolish the building consisting of a two-storey garage structure located at the rear of premises known as 91 Ourimbah Road, Mosman within a period of two months after the expiration of the stay of this Order in accordance with Order (2) below.' 'Order (1) is stayed for 60 days from the date of...