Shellharbour City Council v Altz Pty Ltd [2014] NSWLEC 57

Shellharbour City Council v Altz Pty Ltd [2014] NSWLEC 57

The adjournment was granted because there was a serious question as to whether Altz's present use breached LEP 2013 and the Environmental Planning and Assessment Act 1979 (NSW); aspects of the business were accepted as capable of falling within the lawful bulky goods use and a current complying development certificate existed; and the Council had delayed commencing proceedings despite being aware of complaints and investigating them well before filing. In those circumstances, the interests of justice and the case management principles in the Civil Procedure Act 2005 (NSW), supported by the legislative intention reflected in s 124(3) of the EPA Act, favoured allowing time for the...

Jurisdiction
Australia
Judgment Date
13 May 2014
Procedural Posture
Class 4 Proceedings Seeking Declaration and Injunction Concerning Alleged Unauthorised Use of Premises; Notice of Motion for Adjournment / Notice of Motion Filed by the Respondent Seeking Adjournment of the Proceedings and Vacation or Setting Aside of Earlier Directions
Outcome
Notice of motion granted; proceedings adjourned and earlier directions set aside, with costs of the motion to be costs in the proceedings.
Legal Topics
['adjournment of Proceedings' 'development Application' 'development Consent' 'complying Development Certificate' 'alleged Prohibited or Unauthorised Use' 'overriding Purpose and Case Management']
['practice and Procedure' 'environmental Planning and Assessment' 'land Use and Development Control'] ['adjournment of Proceedings' 'development Application' 'development Consent' 'complying Development Certificate' 'alleged Prohibited or Unauthorised Use' 'overriding Purpose and Case Management']

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Procedural Posture

Class 4 Proceedings Seeking Declaration and Injunction Concerning Alleged Unauthorised Use of Premises; Notice of Motion for Adjournment / Notice of Motion Filed by the Respondent Seeking Adjournment of the Proceedings and Vacation or Setting Aside of Earlier Directions

Legal Issues

  1. 1 ['Whether the Court should adjourn the Class 4 proceedings until 4 July 2014 to allow determination of a development application lodged by Altz.' 'Whether earlier directions requiring preparation and service of points of defence and evidence should be vacated or set aside.' 'Whether the discretion to adjourn should be exercised under the Civil Procedure Act 2005 (NSW), informed by the legislative intention reflected in s 124(3) of the Environmental Planning and Assessment Act 1979 (NSW).']

Ratio Decidendi

The adjournment was granted because there was a serious question as to whether Altz's present use breached LEP 2013 and the Environmental Planning and Assessment Act 1979 (NSW); aspects of the business were accepted as capable of falling within the lawful bulky goods use and a current complying development certificate existed; and the Council had delayed commencing proceedings despite being aware of complaints and investigating them well before filing. In those circumstances, the interests of justice and the case management principles in the Civil Procedure Act 2005 (NSW), supported by the legislative intention reflected in s 124(3) of the EPA Act, favoured allowing time for the...

Court Disposition

Notice of motion granted; proceedings adjourned and earlier directions set aside, with costs of the motion to be costs in the proceedings.

Orders

  • ['Vacate the directions hearing listed for Friday 16 May 2014.' 'Adjourn the proceedings to Friday 4 July 2014 for directions.' 'Costs of the motion to be costs in the proceedings.' 'Set aside Orders 2 and 3 made on 14 February 2014.' 'Note the undertakings given to the Court by the respondent through its counsel...