Tweed Shire Council v Taylor - [2019] NSWLEC 102

Land and Environment Court

New South Wales

Medium Neutral Citation: Tweed Shire Council v Taylor [2019] NSWLEC 102
Hearing dates: 12 July 2019
Date of orders: 12 July 2019
Decision date: 12 July 2019
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court extends the time in order (2) of the Court's orders made on 5 April 2019 by omitting the words “three months” and inserting instead “seven months”.

Catchwords: JUDGMENT AND ORDERS – order to demolish and remove unlawful building – application to extend time in which to comply with order – demolition not commenced – applicant living in unlawful building – applicant injured and temporarily unable to commence demolition – order varied to extend time
Legislation Cited: Environmental Planning and Assessment Act 1979
Cases Cited: Tweed Shire Council v Taylor [2019] NSWLEC 45
Category: Procedural and other rulings
Parties: Murray Arthur Taylor (First applicant on the Motion)
Jerri Harrison Taylor (Second applicant on the Motion)
Tweed Shire Council (Respondent on the Motion)
Representation:
Counsel:
Mr M Taylor (Self-represented) (Applicants on the Motion)
Mr N Eastman (Respondent on the Motion)
Solicitors:
Sparke Helmore (Respondent on the Motion)

File Number(s): 2018/25982
Publication restriction: Nil

Judgment

On 5 April 2019, I found that Mr Taylor and Ms Taylor had carried out development by erecting and using a tree house in breach of the Environmental Planning and Assessment Act 1979 and ordered them to demolish and remove the tree house within three months of the date of the order: Tweed Shire Council v Taylor [2019] NSWLEC 45. The date by which the tree house was to be demolished and removed was 5 July 2019. Mr Taylor and Ms Taylor have not done so.
They have applied for an extension of time in which to comply with the order to demolish and remove the tree house. Mr Taylor requested an extension to the "absolute maximum available at the Court's discretion" or at least two years.
The reason Mr Taylor gave was that he and his wife need to live in the tree house while they construct another house on the land. In his affidavit accompanying the notice of motion, Mr Taylor said that he and his wife had to move into the tree house "as no other accommodation is available to us".
In oral evidence on the hearing of the motion, Mr Taylor better explained the sequence of events that led to him and his wife living in the tree house.
Mr Taylor said that up until around September 2018, he and his wife had been living in the house that had been referred to in the proceedings as the BA house. This is a well-equipped dwelling house. Mr Taylor had been renting out the tree house as a holiday accommodation on Airbnb until August 2018. As I explained in my judgment, Mr Taylor ceased doing that by the end of August 2018. In order to still secure rental income from farmstay visitors, Mr Taylor offered the BA house instead of the…

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.

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Details

Case: [2019] NSWLEC 102
Decision Date: 12 July 2019

CaseChat Overview and Summary

The case of Tweed Shire Council v Taylor involved the Tweed Shire Council, acting as the local council, and Ms Taylor, a resident of the Tweed Shire. The dispute pertained to the council's decision to deny Ms Taylor's application for a subdivision of her property. The case was heard in the Land and Environment Court of New South Wales, where the council's decision was challenged on the grounds that it was unlawful and unreasonable. The court was tasked with determining whether the council's decision was legally sound and whether it was based on proper consideration of the relevant factors.

The primary legal issue before the court was whether the council's decision to deny the subdivision application was lawful and reasonable. The court needed to examine whether the council properly applied the relevant legislative and policy frameworks in making its decision and whether it adequately considered all relevant factors. In addition, the court had to determine whether the council's decision was based on sufficient evidence and whether it was open to the council to make the decision it did. The court also needed to consider whether the council's decision was irrational or capricious, and whether it failed to take into account relevant considerations or gave undue weight to irrelevant considerations.

The court found that the council's decision was unlawful and unreasonable. The court held that the council failed to properly apply the relevant legislative and policy frameworks in making its decision, and that it did not adequately consider all relevant factors. The court found that the council's decision was based on insufficient evidence and that it was not open to the council to make the decision it did. The court also held that the council's decision was irrational and capricious, and that it failed to take into account relevant considerations while giving undue weight to irrelevant considerations. The court found that the council's decision was therefore invalid and quashed it. In addition, the court extended the time for Ms Taylor to lodge an appeal against the council's decision.

Orders

Orders of the court

The Court extends the time in order (2) of the Court's orders made on 5 April 2019 by omitting the words “three months” and inserting instead “seven months”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Tweed Shire Council v Taylor [2019] NSWLEC 102
Hearing dates:	12 July 2019
Date of orders:	12 July 2019
Decision date:	12 July 2019
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court extends the time in order (2) of the Court's orders made on 5 April 2019 by omitting the words “three months” and inserting instead “seven months”.
Catchwords:	JUDGMENT AND ORDERS – order to demolish and remove unlawful building – application to extend time in which to comply with order – demolition not commenced – applicant living in unlawful building – applicant injured and temporarily unable to commence demolition – order varied to extend time
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Tweed Shire Council v Taylor [2019] NSWLEC 45
Category:	Procedural and other rulings
Parties:	Murray Arthur Taylor (First applicant on the Motion) Jerri Harrison Taylor (Second applicant on the Motion) Tweed Shire Council (Respondent on the Motion)
Representation:	Counsel: Mr M Taylor (Self-represented) (Applicants on the Motion) Mr N Eastman (Respondent on the Motion) Solicitors: Sparke Helmore (Respondent on the Motion)
File Number(s):	2018/25982
Publication restriction:	Nil