Hudak v Council of the Municipality of Waverley - [1989] NSWLEC 190

Land and Environment Court

of New South Wales

CITATION: Hudak v Council of the Municipality of Waverley [1989] NSWLEC 190

PARTIES:
APPLICANT
Hudak
RESPONDENT
Council of the Municipality of Waverley

FILE NUMBER(S): 40212 of 1988

CORAM: Cripps J

KEY ISSUES: :-

LEGISLATION CITED: Local Government Act
Environmental Planning and Assessment Act

CASES CITED: Milaninovic v. South Sydney Municipal Council 28 LGRA 195;
F.N Eckold Pty Ltd & Anors v. Auburn Municipal Council 34 LGRA 114;
Woollahra Municipal Council v. T.A.J.J. Investments Pty. Limited 49 LGRA 123 at 125;
R v. City of Oakley; Ex parte New Gamble Brick Works Pty Limited 19 LGRA 258 ;
Council of the Municipality of North Sydney v. Boyts Radio and Electrical Pty Limited 13.4.1989

DATES OF HEARING:

DATE OF JUDGMENT:
05/04/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: In proceedings No 20278/86 Mr Hudak has appealed to the Land and Environment Court in its Class 2 jurisdiction seeking to set aside or modify a Notice dated 13 December 1985 served on him by the Council of the Municipality of Waverley pursuant to the provisions of s.317B(1) of the Local Government Act requiring him within a period of sixty (60) days to demolish a two storey brick residential flat building at 46 Beaumont Street, Rose Bay, because it was in a dilapidated and unsightly condition and prejudicial to the properties in, and the inhabitants of, the neighbourhood.

In proceedings No. 40212/88 the Council has made application to the Court in its Class 4 jurisdiction seeking the following declarations with respect to the same property:

(1) that the building approval purportedly granted by the Council on 31 May 1974 to renovate the residential flat building and to add a storey to it was void;

(2) that the building work the subject of the approval of 31 May 1974 was not substantially commenced within 12 months after the date of the approval; and

(3) that the use of the building for the purpose of a residential flat building has been abandoned.

The Council also seeks an order in the Class 4 proceedings that Mr Hudak be restrained from using the subject building as a residential flat building.

The Council opposes the setting aside or modification of the 317B Notice on grounds, inter alia, that there are no existing use rights attaching to the land. It further alleges that if existing use rights have not been abandoned, Mr Hudak has no valid building approval to undertake any building work on the subject land which would make the present structure presentable and usable as a residential fIat building.

Mr Hudak disputes Council's claim that the subject building is presently in such a dilapidated and unsightly condition that it ought be demolished. He further submits that even if it is, the Notice ought be modified to permit him to complete the building work commenced in 1975. He does not dispute that the use of the land and building for the purpose of a residential flat building is prohibited under the relevant zoning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hudak v Council of the Municipality of Waverley

Details

AGLC: Hudak v Council of the Municipality of Waverley [1989] NSWLEC 190
Case: [1989] NSWLEC 190
Decision Date: 05/04/1989

CaseChat Overview and Summary

In Hudak v Council of the Municipality of Waverley, the Land and Environment Court of New South Wales considered a dispute between the applicant, Mr. Hudak, and the Council of the Municipality of Waverley. The primary issue was whether Mr. Hudak should be required to demolish a dilapidated residential flat building at 46 Beaumont Street, Rose Bay. The court also had to determine the validity of a building approval granted by the Council in 1974, and whether existing use rights for the property had been abandoned.

The court found that the building was indeed in a dilapidated and unsightly condition, and potentially dangerous, which justified the Council's notice to demolish. However, the court rejected the Council's argument that the building approval granted in 1974 was void and that the work had not been substantially commenced. The court held that the approval remained valid and that the work had been substantially commenced. Additionally, the court ruled that existing use rights had been abandoned as the building had not been used as a residential flat building for almost six years, and Mr. Hudak had not demonstrated a genuine intention to continue using it for that purpose.

The court dismissed Mr. Hudak's appeal to set aside the demolition notice but found in his favour regarding the validity of the building approval and the abandonment of existing use rights. The court ordered Mr. Hudak to demolish the building within 60 days and declared that the use of the building for residential flats had been abandoned. No order for costs was made as both parties achieved partial success in the proceedings.

Orders