Hale v Mosman Council [2007] NSWLEC 788

Hale v Mosman Council [2007] NSWLEC 788

The s121B order referred only to the unauthorised extension above the existing tennis court fence, so the Court would not require removal of lining from the existing fence. The extension no longer had a legitimate privacy function because the trees at 11 Buena Vista Avenue were healthy and above 4m and privacy at 18 Burrawong Avenue was adequate, but a 14 day compliance period was unreasonable given the difficulty of obtaining workmen in December and January and the benefit of allowing further tree growth. The order was therefore modified only by setting the compliance date as 31 March 2008 and otherwise confirmed.

Jurisdiction
Australia
Judgment Date
27 November 2007
Procedural Posture
Appeal Against S121 B Order / Ex Tempore Judgment
Outcome
Order modified as to the period of compliance; otherwise confirmed. Exhibits returned.
Legal Topics
['appeal Against Order Under S121 B' 'unauthorised Screen and Fencing' 'period of Compliance' 'privacy and Overlooking']
['environmental Planning and Assessment' 'local Government Enforcement'] ['appeal Against Order Under S121 B' 'unauthorised Screen and Fencing' 'period of Compliance' 'privacy and Overlooking']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Against S121 B Order / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the s121B order extended to the synthetic lining on the existing tennis court fence or only to the unauthorised fence extension.' 'When the unauthorised screen and fence extension should be removed.']

Ratio Decidendi

The s121B order referred only to the unauthorised extension above the existing tennis court fence, so the Court would not require removal of lining from the existing fence. The extension no longer had a legitimate privacy function because the trees at 11 Buena Vista Avenue were healthy and above 4m and privacy at 18 Burrawong Avenue was adequate, but a 14 day compliance period was unreasonable given the difficulty of obtaining workmen in December and January and the benefit of allowing further tree growth. The order was therefore modified only by setting the compliance date as 31 March 2008 and otherwise confirmed.

Court Disposition

Order modified as to the period of compliance; otherwise confirmed. Exhibits returned.

Orders

  • ['The Order under s 121B of the Environmental Planning and assessment Act 1979 made by Mosman Council on 2 August 2007 in respect of unauthorised screen and fencing at 18 Burrawong Avenue, Mosman is modified to the extent of the Period of Compliance, which is to be 31 March 2008.' 'The exhibits are returned.']