Ajvadi v Wicks (No 2) [2024] NSWLEC 44

Ajvadi v Wicks (No 2) [2024] NSWLEC 44

The Court granted declaratory and remedial relief because Wicks admitted that the retaining wall works were carried out without development consent in breach of s 4.2(1)(a) of the EPAA; Wicks was a proper contradictor despite not opposing the declaration; the breach was not trivial, affected the applicants' amenity and privacy, and undermined the planning regulatory system; and the 2024 development consent provided an appropriate basis for ordering prompt demolition, remediation, and completion of approved privacy-related works under s 9.45(1).

Jurisdiction
Australia
Judgment Date
02 May 2024
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment on Agreed Consent Orders for Declaratory and Remedial Relief
Outcome
Declaration and remedial orders made by consent; first respondent ordered to pay the applicants' costs from 16 December 2022 to date, as agreed or assessed.
Legal Topics
['development Without Consent' 'declaratory Relief' 'remedial Orders' 'demolition and Remediation of Unauthorised Works' 'retaining Wall']
['environmental Law' 'planning and Development Law' 'civil Enforcement'] ['development Without Consent' 'declaratory Relief' 'remedial Orders' 'demolition and Remediation of Unauthorised Works' 'retaining Wall']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment on Agreed Consent Orders for Declaratory and Remedial Relief

Legal Issues

  1. 1 ['Whether declaratory relief should be granted for works carried out without development consent in breach of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979.' 'Whether demolition or other remedial orders should be made under s 9.45(1) of the Environmental Planning and Assessment Act 1979.' 'What timeframe should apply to demolition, remedial works, and completion of approved privacy-related works.']

Ratio Decidendi

The Court granted declaratory and remedial relief because Wicks admitted that the retaining wall works were carried out without development consent in breach of s 4.2(1)(a) of the EPAA; Wicks was a proper contradictor despite not opposing the declaration; the breach was not trivial, affected the applicants' amenity and privacy, and undermined the planning regulatory system; and the 2024 development consent provided an appropriate basis for ordering prompt demolition, remediation, and completion of approved privacy-related works under s 9.45(1).

Court Disposition

Declaration and remedial orders made by consent; first respondent ordered to pay the applicants' costs from 16 December 2022 to date, as agreed or assessed.

Orders

  • ['Declared that the first respondent, by his servants, agents or invitees, carried out or caused to be carried out works on land at 40 Castle Circuit, Seaforth, known legally as Lot 24 in DP 20458, being the construction of a retaining wall adjoining the western boundary between that land and 42 Castle Circuit,...