Hornsby Shire Council v Gallagher

[2003] NSWLEC 109

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Land and Environment Court

of New South Wales

CITATION:	Hornsby Shire Council v Gallagher [2003] NSWLEC 109
PARTIES:	APPLICANT: Hornsby Shire Council 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
LEGAL REPRESENTATIVES:	APPLICANT: Mr P M Jackson (solicitor) SOLICITORS: Pike Pike & Fenwick 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.

I hereby certify that the preceding 9 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

Associate

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