Mosman Municipal Council v Kelly (No. 2) [2008] NSWLEC 229

Mosman Municipal Council v Kelly (No. 2) [2008] NSWLEC 229

Mr Kelly has no arguable defence to the proceedings for demolition of the unauthorised garage structure due to significant departures from the approved plans and statutory public interest in enforcement of planning law; therefore, no sufficient ground exists to set aside the judgment under rule 36.16(2)(b).

Parties
Applicant: Mosman Municipal Council; Respondent: David Kelly
Jurisdiction
Australia
Judgment Date
31 July 2008
Procedural Posture
Notice of Motion to Set Aside Judgment / Decision on Application to Set Aside Judgment
Outcome
Application to set aside judgment refused; variation of postponement order granted; costs ordered against Mr Kelly.
Legal Topics
Setting Aside Judgment Made in Absence of a Party, Planning Controls Enforcement, Development Consent, Costs
Planning and Environment Law Civil Procedure Setting Aside Judgment Made in Absence of a Party Planning Controls Enforcement Development Consent Costs

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Parties

Mosman Municipal Council

Applicant

David Kelly

Respondent

Procedural Posture

Notice of Motion to Set Aside Judgment / Decision on Application to Set Aside Judgment

Legal Issues

  1. 1 Whether judgment made in absence of Mr Kelly should be set aside
  2. 2 Whether Mr Kelly has an arguable defence to enforcement proceedings for demolition of unauthorised structure

Ratio Decidendi

Mr Kelly has no arguable defence to the proceedings for demolition of the unauthorised garage structure due to significant departures from the approved plans and statutory public interest in enforcement of planning law; therefore, no sufficient ground exists to set aside the judgment under rule 36.16(2)(b).

Court Disposition

Application to set aside judgment refused; variation of postponement order granted; costs ordered against Mr Kelly.

Orders

  • Notice of motion to set aside judgment refused except that Order 2 made on 18 February 2007 varied to postpone the operation of Order 1 for four months from 31 July 2008.
  • The applicant (Mr Kelly) on the motions to pay the council's costs of the motions.