Armidale Dumaresq Council v Schmitz [2011] NSWLEC 236

Armidale Dumaresq Council v Schmitz [2011] NSWLEC 236

Serious risks identified from unauthorised construction works affecting neighbouring properties create a serious question to be tried and the balance of convenience favours granting the injunction and remedial orders.

Parties
Applicant: Armidale Dumaresq Council; Respondent: Petra Schmitz
Jurisdiction
Australia
Judgment Date
30 November 2011
Procedural Posture
Interlocutory Application (injunction) in Class 4 / Interlocutory Decision With Orders and Undertakings Pending Further Directions
Outcome
Injunctive relief granted with specified undertakings and orders; costs reserved; matter stood over for mention and further directions.
Legal Topics
Injunctions, Development Consent, Stormwater Management, Unauthorised Building Works
Planning and Environment Law Local Government Law Injunctions Development Consent Stormwater Management Unauthorised Building Works

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Parties

Armidale Dumaresq Council

Applicant

Petra Schmitz

Respondent

Procedural Posture

Interlocutory Application (injunction) in Class 4 / Interlocutory Decision With Orders and Undertakings Pending Further Directions

Legal Issues

  1. 1 Whether injunctive relief should be granted to require the respondent to undertake works to stop stormwater runoff escaping from the property
  2. 2 Whether there is a serious question to be tried regarding consent for the septic tank and stormwater construction
  3. 3 Whether the balance of convenience favours granting the injunction

Ratio Decidendi

Serious risks identified from unauthorised construction works affecting neighbouring properties create a serious question to be tried and the balance of convenience favours granting the injunction and remedial orders.

Court Disposition

Injunctive relief granted with specified undertakings and orders; costs reserved; matter stood over for mention and further directions.

Orders

  • Respondent undertakes not to carry out further building work at 188 Markham Street (other than specified remediation) until 16 December 2011.
  • Respondent undertakes to permit the applicant's officers to enter and inspect the structure for water accumulation and structural integrity.