Eschenko v Cummins

Leonid Eschenko sought to challenge the approvals granted by the Gold Coast City Council to Mary Elizabeth Cummins in relation to alterations and extensions to her beachfront property. The applicant claimed that the Council's decision to relax the setback requirements was invalid, as it had not been made in accordance with the law. Specifically, the applicant alleged that the Council's decision was made without reference to the applicant, without consideration of the impact on the applicant's property, and as a result of fraud on the part of the third respondents, who were the architects of the proposed works. The applicant further claimed that the dwelling constructed on the respondent's property had been built in breach of the Planning Scheme and the Standard Building Regulation.

The court held that the Council's decision to relax the setback requirements was valid, as it was reasonably open to the Council to grant such approval. The court found that the Council had considered the relevant statutory requirements in making its decision, and that the decision was not based on irrelevant considerations or one that no reasonable Council could have granted. The court also found that the applicant had failed to establish that the approval was obtained by fraud, as the representations made by the architects were honestly made. The court further held that the dwelling constructed on the respondent's property had been built in breach of the Planning Scheme, as it had not complied with the requirements for building footings resistant to erosion.

In conclusion, the court dismissed the application for a declaration of invalidity, with respect to the Council's relaxation of the setback requirements. The court also dismissed the application for a declaration that the dwelling had been constructed contrary to the Standard Building Regulation, and for an order cancelling the approval granted to the respondent. However, the court upheld the application for a declaration that the dwelling had been constructed in breach of the Planning Scheme. The applicant's claim for a demolition order was refused, as the court did not have jurisdiction to make such an order in the absence of an application by the Council as the assessing authority.