Council of the Municipality of Woollahra v Sved

The Council of the Municipality of Woollahra (the Council) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales. The dispute concerned the Council's power to require the removal of a fence erected by Mr. and Mrs. Sved (the respondents) on their property. The Council contended that the fence constituted a "building" within the meaning of the relevant local government legislation and therefore required development consent, which had not been obtained. The respondents argued that the fence was not a building and that the Council had acted unreasonably and in bad faith in issuing the notice to remove it.

The Court of Appeal was required to determine whether the fence in question was a "building" for the purposes of the *Local Government Act 1993* (NSW) and, if so, whether the Council had acted lawfully and reasonably in issuing the notice for its removal. A further issue was whether the Council's decision was vitiated by bad faith or improper purpose.

The Court of Appeal, in allowing the appeal, held that the fence, by virtue of its height, construction, and permanence, did constitute a "building" within the meaning of the Act. The Court found that the Council had not acted in bad faith or for an improper purpose. Instead, the Council had genuinely considered the matter and had exercised its discretion in a manner that it believed was in the public interest, based on its interpretation of the planning controls. The Court emphasised that the subjective belief of the Council as to the best course of action, provided it was within its powers and not actuated by malice or improper motive, was sufficient.

The Court of Appeal set aside the order of the Supreme Court and ordered that the respondents remove the fence within a specified period.