Marion McDowell and Associates Pty Ltd v Georges River Council [2017] NSWLEC 1293

Land and Environment Court New South Wales

Medium Neutral Citation: Marion McDowell and Associates Pty Ltd v Georges River Council [2017] NSWLEC 1293 Hearing dates: 5 June 2017 Date of orders: 13 June 2017 Decision date: 13 June 2017 Jurisdiction: Class 1 Before: Gray C Decision: Orders as at [33] Catchwords: APPEAL – council order – building erected without consent – whether demolition reasonable – building certificate application lodged with Council – building can be regularised – whether stay of the order should be granted indefinitely Legislation Cited: Civil Procedure Act 2005 s 56 Hurstville Local Environmental Plan 1994 Hurstville Local Environmental Plan 2012 Environment and Planning Assessment Act 1979 ss 121B, 121ZK, 149E Land and Environment Court Act 1979 ss 16A, 39 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [2009] HCA 27 Imaroo Flyer Pty Ltd v Berrigan Shire Council [2010] NSWLEC 1251Click here to enter text. Category: Principal judgment Parties: Marion McDowell and Associates Pty Ltd (Applicant) Georges River Council (Respondent) Representation: J Burrell, Burrell Solicitors (Applicant) C Zoppo, Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/241879

Judgment 1. COMMISSIONER: Marion McDowell & Associates Pty Ltd ('McDowell') is the owner of premises at 58 Blackshaw Avenue, Mortdale, which comprise a ground floor stone masonry business with a first floor office and caretaker's dwelling. An extension at the rear of the premises has been constructed without development consent. 2. McDowell appeals against an order issued by Georges River Council on 15 July 2016 pursuant to s121B of the Environmental Planning and Assessment Act 1979 ('EPA Act'), in which the Council requires McDowell to: "1. Remove the unauthorised metal enclosure/extension that has been attached to the rear of 58 Blackshaw Avenue Mortdale." 1. Following the commencement of the appeal, McDowell made an application to the Council on 21 September 2016 for a building certificate under s149B of the EPA Act. That building certificate application has not yet been determined. McDowell seeks to have the order stayed pending the outcome of that application. 2. The only contentions raised in the Statement of Facts and Contentions as grounds upon which McDowell seeks to have the order set aside are, firstly, that a Notice of Intention to issue the order was not served on the applicant and secondly, that the structure is capable of being regularised. The first of these grounds is not pursued, and McDowell submits that the second ground warrants a stay of the order pending the determination of the building certificate application. 3. For the reasons set out below, I accept that the order can be made, is reasonable in the circumstances and ought not be set aside or stayed until further order of the Court. The fact of a building certificate application being made is not a sufficient ground, in and of itself, for an order to be set aside or stayed.