Flyak v Hall [2023] NSWLEC 58

Flyak v Hall [2023] NSWLEC 58

It is appropriate to make a declaration that the respondents are in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) by carrying out development (erection of a timber retaining wall) otherwise than in accordance with the relevant development consent, to ensure strict and full compliance and remove uncertainty as to the orders' scope and intent.

Jurisdiction
Australia
Judgment Date
02 May 2023
Procedural Posture
Civil Enforcement / Final Orders by Consent
Outcome
Declaration 1 (as amended) and orders 4 through 10 made in terms of Short Minutes of Order, including order as to costs; proceedings otherwise dismissed.
Legal Topics
['development Consent' 'retaining Wall' 'compliance' 'declarations']
['environmental Law' 'civil Enforcement'] ['development Consent' 'retaining Wall' 'compliance' 'declarations']

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Procedural Posture

Civil Enforcement / Final Orders by Consent

Legal Issues

  1. 1 ['Whether the respondents breached development consent by constructing a timber retaining wall not in accordance with consent.' 'Whether a declaration should be made for breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW).']

Ratio Decidendi

It is appropriate to make a declaration that the respondents are in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) by carrying out development (erection of a timber retaining wall) otherwise than in accordance with the relevant development consent, to ensure strict and full compliance and remove uncertainty as to the orders' scope and intent.

Court Disposition

Declaration 1 (as amended) and orders 4 through 10 made in terms of Short Minutes of Order, including order as to costs; proceedings otherwise dismissed.

Orders

  • ['Declaration that the First and Second Respondents are in breach of s 4.2 Environmental Planning and Assessment Act 1979 (NSW) by carrying out the erection of a timber retaining wall otherwise than in accordance with development consent 205/209/MA.' "Orders for reconstruction of the timber retaining wall wholly...