Lake Macquarie City Council v Gordon and Anor [2016] NSWLEC 49

Lake Macquarie City Council v Gordon and Anor [2016] NSWLEC 49

The s 121B orders founded wholly on the Douglas Partners' scheme were invalid because the Douglas Partners documents expressly stated that they were advice and opinion rather than instructions for construction and required further review, agreement and refinement before use as a specification. However, if that conclusion were wrong, the proposed scheme was capable of achieving a functional restoration of the site because 'restore' in order 12 should be read as restoration to the extent reasonably possible in the circumstances. Mrs Gordon was not a passive bystander: as owner she knew of the unauthorised earthworks, signed undertakings acknowledging and addressing the Council's concerns,...

Jurisdiction
Australia
Judgment Date
02 May 2016
Procedural Posture
Class 4 Civil Enforcement Proceedings Concerning Development Without Consent and Remediation Orders / Principal Judgment After Hearing
Outcome
Declarations and orders made in part; the s 121B orders based on the Douglas Partners' scheme were held invalid; costs reserved.
Legal Topics
['development Without Consent' 'earthworks' 'section 121 B Orders' 'declarations and Remediation Orders' 'owner Responsibility for Unauthorised Works' 'rectification of Land' 'owners Consent for Works on Neighbouring and Council Land']
['planning and Environment Law' 'development Control' 'civil Enforcement'] ['development Without Consent' 'earthworks' 'section 121 B Orders' 'declarations and Remediation Orders' 'owner Responsibility for Unauthorised Works' 'rectification of Land' 'owners Consent for Works on Neighbouring and Council Land']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings Concerning Development Without Consent and Remediation Orders / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Council's orders under s 121B of the Environmental Planning and Assessment Act 1979 based on the Douglas Partners' remediation scheme were valid and sufficiently certain." "Whether implementation of the Douglas Partners' scheme, if validly required, would restore the land within the meaning of order 12 in the table to s 121B of the Environmental Planning and Assessment Act 1979." 'Whether Mrs Gordon, as owner of the land, carried out development within the meaning of s 76A(1) of the Environmental Planning and Assessment Act 1979.' 'Whether declarations and remediation orders should be made against Mrs Gordon as well as Mr Gordon.' 'What orders should be made concerning the concrete detention basin constructed partly on 14 Ebsworth Street and with PVC pipes installed in the Ebsworth Street verge.']

Ratio Decidendi

The s 121B orders founded wholly on the Douglas Partners' scheme were invalid because the Douglas Partners documents expressly stated that they were advice and opinion rather than instructions for construction and required further review, agreement and refinement before use as a specification. However, if that conclusion were wrong, the proposed scheme was capable of achieving a functional restoration of the site because 'restore' in order 12 should be read as restoration to the extent reasonably possible in the circumstances. Mrs Gordon was not a passive bystander: as owner she knew of the unauthorised earthworks, signed undertakings acknowledging and addressing the Council's concerns,...

Court Disposition

Declarations and orders made in part; the s 121B orders based on the Douglas Partners' scheme were held invalid; costs reserved.

Orders

  • ['Declared that the First Respondent and Second Respondent carried out or caused or permitted to be carried out earthworks on 12 Ebsworth Street Redhead between 2009 and 2015 in breach of s 76A(1) of the EP&A Act.' 'Declared that the First Respondent and Second Respondent carried out or caused or permitted to be...