Inner West Council v Kontellis [2017] NSWLEC 57

Inner West Council v Kontellis [2017] NSWLEC 57

The Respondents constructed and maintained a brick wall otherwise than in accordance with Development Consent No. 201300483, failed to comply with the Council's 29 July 2015 order, and carried out development on the adjoining property without consent. The wall was not exempt development, any asserted neighbour consent or Local Court dividing fence determination did not displace the requirements of the Environmental Planning and Assessment Act 1979 or the development consent, and the Council's order was valid. The Council was therefore entitled to the declarations, enforcement orders, demolition/restoration relief and costs it sought.

Jurisdiction
Australia
Judgment Date
17 May 2017
Procedural Posture
Class 4 Civil Enforcement Proceeding / Principal Judgment
Outcome
Relief granted to the Applicant; declarations and orders made; Respondents ordered to pay the Applicant's costs.
Legal Topics
['development Consent Compliance' 'statutory Orders Under the Environmental Planning and Assessment Act 1979' 'exempt Development' 'interaction Between Planning Legislation and the Dividing Fences Act 1991' 'encroachment on Adjoining Property' 'discretionary Relief and Costs']
['environmental Planning Law' 'local Government Enforcement' 'dividing Fences' 'land and Environment'] ['development Consent Compliance' 'statutory Orders Under the Environmental Planning and Assessment Act 1979' 'exempt Development' 'interaction Between Planning Legislation and the Dividing Fences Act 1991' 'encroachment on Adjoining Property' 'discretionary Relief and Costs']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceeding / Principal Judgment

Legal Issues

  1. 1 ['Whether the Respondents breached s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 by constructing a brick wall otherwise than in accordance with Development Consent No. 201300483.' 'Whether the Respondents failed to comply with the Council order issued on 29 July 2015 under s 121B of the Environmental Planning and Assessment Act 1979.' 'Whether the Respondents breached s 76A(1)(a) by constructing portions of the brick wall on the adjoining property without development consent.' 'Whether the wall was exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' 'Whether any agreement between neighbours or Local Court orders under the Dividing Fences Act 1991 displaced the requirements of the development consent or the Environmental Planning and Assessment Act 1979.' 'Whether the Council order was invalid because notice of intention was not served on the principal certifying authority in the manner contended by the Respondents.' 'Whether the Court should exercise discretion to refuse or limit relief.']

Ratio Decidendi

The Respondents constructed and maintained a brick wall otherwise than in accordance with Development Consent No. 201300483, failed to comply with the Council's 29 July 2015 order, and carried out development on the adjoining property without consent. The wall was not exempt development, any asserted neighbour consent or Local Court dividing fence determination did not displace the requirements of the Environmental Planning and Assessment Act 1979 or the development consent, and the Council's order was valid. The Council was therefore entitled to the declarations, enforcement orders, demolition/restoration relief and costs it sought.

Court Disposition

Relief granted to the Applicant; declarations and orders made; Respondents ordered to pay the Applicant's costs.

Orders

  • ['Declaration that the Respondents breached section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 by constructing a brick wall on Lot 1 of Deposited Plan 962077, known as 12 Pine Street, Marrickville, otherwise than in accordance with Development Consent No. 201300483.' 'Declaration that the...