Mosman Municipal Council v Sahade (No. 4)

[1999] NSWLEC 203

Land and Environment Court

of New South Wales

CITATION:

Mosman Municipal Council v Sahade (No. 4) [1999] NSWLEC 203

PARTIES

APPLICANT:
Mosman Municipal Council

RESPONDENT:
Sahade

NUMBER:

40171 of 1998

CORAM:

Talbot J

KEY ISSUES:

Practice & Procedure :- application for adjournment

LEGISLATION CITED:

DATES OF HEARING:

03/01/1999; 03/02/1999

EX TEMPORE JUDGMENT DATE:

03/02/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Ms S Duggan (Barrister)

SOLICITORS:
Hill Thompson Sullivan

RESPONDENT:
Mr M Sahade (Barrister)

SOLICITORS:
n/a

JUDGMENT:

IN THE LAND AND Matter No. 40171 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 2 March 1999

Mosman Municipal Council
Applicant

v
Anthony Victor Sahade (No. 4)

Respondent

REASONS FOR JUDGMENT ON APPLICATION FOR ADJOURNMENT


1. HIS HONOUR: As I understand the present application it is either an application to adjourn the proceedings or to ultimately suspend the making of orders. In either case the object is to enable the respondent to abide the outcome of an application for development consent which, so I am told, relates to some work in respect of a driveway, some further work in respect of a stormwater system, and also some work in respect of outside seating. There is but a skerrick of evidence arising out of Mr Clabburn’s evidence when he was cross examined on the subject.

2. The Court has not been placed in a position where it can properly adjudicate the merits of such an application, given that it has no evidence which would entitle it to reach a conclusion that the breach of the conditions of development consent in the building approval would not have been committed if the consent which is referred to had been obtained.

3. In any event prima facie s 124(3) would not have a role to play in the circumstances except and unless it can be shown that the obtaining of a consent would overcome the breach. It is not as if the premises are being used for a use which does not have the benefit of any consent, yet a development application could be made to obtain a consent for such a use.

4. This is a case about breach of conditions of an existing development consent and the breach of conditions of an existing building approval. Even if the application is to be regarded as an application at large to adjourn the proceedings, the Court has not been sufficiently appraised, other than by submission from the bar table, about the true position which could form the basis for the success of such an application.

5. Whether or not the Court should suspend the operation of any orders that it makes in the circumstances, is a matter which will be considered by the Court in the exercise of its undoubted discretion in that regard when and if any orders are made. But I must foreshadow that, for the same reasons I have outlined in regard to the application for the adjournment, the Court, quite frankly, is simply not in a position to make an assessment of the merits of such an application in the absence of the very material that is relied upon in submissions from the bar table.

6. This is a case where the evidence so far presented is all one way. The Court has not had the benefit of evaluating the contrary position advocated by the respondent other than by submissions made from the bar table. In some respects they are based upon evidence and in other cases based upon inference or mere assertion.

7. The application for an adjournment in the circumstances must be refused and is refused.