Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57

Hammoudi v Commissioner for Fair Trading [2016] NSWCATOD 57

The proposed work would create a dual occupancy, so section 32(1A) required special circumstances. In the absence of guidelines, the Tribunal considered the legislative purpose, the objects of the Home Building Act 1989, the Second Reading Speech and the Applicant's circumstances. It found that the proposal was for legitimate non-commercial reasons, namely a retirement home suitable for old age near an existing dwelling to be occupied by the Applicant's son, with no present intention to subdivide or sell for profit. It also accepted that refusal would cause family and financial hardship because the Applicant would either be unable to proceed with the approved development or would face the...

Jurisdiction
Australia
Judgment Date
11 May 2016
Procedural Posture
Application for Review of Refusal of Owner Builder Permit / Merits Review of Internal Review Decision
Outcome
The Respondent's decision to refuse the owner-builder permit was set aside.
Legal Topics
['owner Builder Permit' 'dual Occupancy' 'special Circumstances' 'family Hardship' 'non Commercial Residential Building Work']
['administrative Law' 'home Building' 'planning and Development'] ['owner Builder Permit' 'dual Occupancy' 'special Circumstances' 'family Hardship' 'non Commercial Residential Building Work']

Case Brief

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Procedural Posture

Application for Review of Refusal of Owner Builder Permit / Merits Review of Internal Review Decision

Legal Issues

  1. 1 ['Whether the proposed residential building work related to a dual occupancy for the purposes of the Home Building Act 1989.' 'Whether special circumstances existed under section 32(1A) of the Home Building Act 1989 to justify issue of an owner-builder permit.' 'Whether refusal of the owner-builder permit would cause family or financial hardship and whether the work had legitimate non-commercial reasons.']

Ratio Decidendi

The proposed work would create a dual occupancy, so section 32(1A) required special circumstances. In the absence of guidelines, the Tribunal considered the legislative purpose, the objects of the Home Building Act 1989, the Second Reading Speech and the Applicant's circumstances. It found that the proposal was for legitimate non-commercial reasons, namely a retirement home suitable for old age near an existing dwelling to be occupied by the Applicant's son, with no present intention to subdivide or sell for profit. It also accepted that refusal would cause family and financial hardship because the Applicant would either be unable to proceed with the approved development or would face the...

Court Disposition

The Respondent's decision to refuse the owner-builder permit was set aside.

Orders

  • ["The Respondent's decision is set aside."]