Hornsby Shire Council v Gallagher [2003] NSWLEC 109

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CITATION : Hornsby Shire Council v Gallagher [2003] NSWLEC 109 APPLICANT: Hornsby Shire Council PARTIES : RESPONDENT: Michael Patrick Gallagher FILE NUMBER(S) : 40763 of 2002 CORAM: Lloyd J KEY ISSUES: Injunctions and Declarations :- declaratory orders - relief - unlawful erection of temporary structure on land LEGISLATION CITED: Local Government Act 1993 s 68(1) CASES CITED: DATES OF HEARING: 01/04/2003 EX TEMPORE JUDGMENT DATE : 04/01/2003

APPLICANT: Mr P M Jackson (solicitor) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: In person SOLICITORS: N/A

JUDGMENT: - 2 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40763 of 2002

Lloyd J

1 April 2003 HORNSBY SHIRE COUNCIL Applicant v MICHAEL PATRICK GALLAGHER Respondent EXTEMPORE JUDGMENT HIS HONOUR: 1 In this case the applicant, Hornsby Shire Council ("the council"), seeks relief by way of declaration and injunction in relation to a breach of s 68(1) of the Local Government Act 1993. 2 The evidence established that on four days, namely 26 September 2002, 28 September 2002, 14 October 2002 and 21 October 2002 the respondent, Mr M P Gallagher, participated in the erection of a tent on land known as Hornsby Mall at Florence Street, Hornsby. 3 A tent is a temporary structure as defined in the dictionary to the Local Government Act 1993. Section 68(1) of that Act provides: 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. 4 Part A of the table to s 68 is headed "Structures or places of public entertainment" and relevantly includes item 2: "[i]nstall a temporary structure on land". 5 The evidence also shows that the respondent, Mr M P Gallagher, erected a tent, or at least participated in the erection of a tent, on 24 October 2002 and 26 October 2002, in addition to the dates noted above. 6 There is no reason to doubt any of that evidence. The evidence also shows that no approval has been granted by the council for the erection or installation of a tent or any other temporary structure on land known as Hornsby Mall located at Florence Street, Hornsby. 7 It follows that there being no discretionary matters put in opposition to the orders being sought, the relief claimed in paras 1, 2 and 3 of the application will be granted. 8 I should note that Mr M P Gallagher appeared and represented himself assisted by a "McKenzie friend", Mr M McClure. During the course of his cross-examination the respondent, Mr M P Gallagher, decided to no longer participate in the proceedings and walked out. I note that as a consequence nothing has been put to me in opposition to the orders now sought. 9 The formal orders of the Court are as set out in paragraphs 1, 2 and 3 of the Class 4 application.