Payne v Mosman Municipal Council and Anor - [2000] NSWLEC 25 - NSWLEC 1998 case summary — Zoe

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Payne v Mosman Municipal Council and Anor

[2000] NSWLEC 25

Land and Environment Court (NSW)|1998-08-21|Before: Pearlman J, Cowdroy AJ, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1998-08-21

Before

Pearlman J, Cowdroy AJ, Mr J

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

The applicant, Mrs M H Payne, seeks the following declaratory and injunctive relief against Mosman Municipal Council, the first respondent ("the council") and D A Berry & Co Pty Ltd, the second respondent:

[2]

(1) A declaration that the erection of an elevated porch/courtyard of a light weight steel frame ("the Structure") at premises known as 20 Kirkoswald Avenue, Mosman requires the consent of the First Respondent pursuant to the Local Government Act of New South Wales 1993 ("the Act"); (2) A declaration that the Structure erected upon the Land contained in Folio Identifier 101/583730 by D A Berry and Company Pty Ltd ACN 050 159 790 and known as 20 Kirkoswald Avenue, Mosman, is illegal, and has been erected without consent pursuant to the Act. (3) An order that the Second Respondent demolish illegal Structure. Alternatively, that the First Respondent take all such steps as are necessary pursuant to the Act to have the illegal Structure removed. 3. An affidavit of service of the class 4 application upon the second respondent was tendered at the hearing, but the second respondent did not appear. A company extract from the ASIC database was tendered, which showed that the second respondent was deregistered on 7 July 1995 pursuant to s 574 of the Corporations Law 1989 (which allowed the deregistration of a defunct company). As a consequence, the applicant abandoned its prayer for an order that the second respondent demolish the structure. Instead, the applicant sought the alternative order against the council which I have set out above.

[21]

It was said that the orders should be made against the council because it had failed in its duty to ensure that the development consent and building approval were complied with. Authority for the proposition that the council had such a duty was said to be Echt and Anor v Ryde City Council and Ors (Cowdroy AJ, NSWLEC, 21 August 1998, unreported), where a declaration was made that the local council had failed to take any action under the LG Act, or at all, to enforce conditions of a building approval. At p 6 of his judgment, Cowdroy AJ (as he then was) stated that "[t]here is no doubt that the Council, as the approving authority, has the responsibility to ensure that the requirements of the … [EP&A Act] …, and of any approval granted thereto, are fulfilled" , and his Honour cited, among other authorities, Warringah Shire Council v Sedevcic (1987) 63 LGRA 360 without, however, referring to any particular passage. In that case, at pp 365 - 367, Kirby P set out a number of guidelines for the exercise of the Court's discretion. One of those guidelines is apparently the passage which Cowdroy AJ had in mind, and it is as follows: In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment … Because s 123 of the … [EP&A Act] … permits any person (and not just the Attorney-General or a person with a sufficient interest) to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid …

Payne v Mosman Municipal Council and Anor

At a glance

Court

Decision date

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Judgment (35 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)

Cited By (3)