Malass v Strathfield Municipal Council

The case of Malass v Strathfield Municipal Council involved a dispute between the applicant, Rabi Malass, and the respondent, Strathfield Municipal Council. The applicant sought relief from an order issued by the Council, which required specific work to be carried out on his property. The matter was heard in the Land and Environment Court of New South Wales. The applicant contested the order issued by the Council under section 9.34 and schedule 5 of the Environmental Planning and Assessment Act 1979, dated 14 September 2020, and sought a stay of its operation.

The primary legal issue for the court to determine was whether the operation of the Council's order should be stayed pending the outcome of the applicant's development application and building information certificate application. The applicant argued that the order was unreasonable and oppressive, and that it should be stayed to allow him to pursue the necessary applications for development consent. The Council, on the other hand, contended that the order was valid and enforceable, and that it was necessary to protect the public interest and to prevent unlawful building work.

In considering the matter, the court found that the order was unreasonable and oppressive in that it prevented the applicant from carrying out work that was necessary to complete his building project. The court noted that the applicant had a reasonable prospect of success in his development application, and that the order would cause him significant hardship if it were to be enforced. The court also found that the order was not necessary to protect the public interest, as the applicant had taken steps to ensure that the work was carried out in a safe and lawful manner. Accordingly, the court granted a partial stay of the order, allowing the applicant to carry out certain works on his property before a specified date, subject to certain conditions.

In conclusion, the court granted the applicant's application for relief from the Council's order, subject to certain conditions. The court found that the order was unreasonable and oppressive, and that it should be stayed to allow the applicant to pursue his development application and building information certificate application. The court also imposed conditions on the stay, requiring the applicant to actively pursue those applications and to take prompt steps to appeal any refusals to this Court. The court's decision provides guidance on the circumstances in which an order under section 9.34 of the Environmental Planning and Assessment Act 1979 may be stayed, and the factors that the court will take into account in making such a decision.