Lane Cove Council v Ross (No 4) [2012] NSWLEC 191

Lane Cove Council v Ross (No 4) [2012] NSWLEC 191

Mr Ross admitted carrying out works contrary to the consent, the breaches were not merely technical, the works had no beneficial effect on the locality and were contrary to the planning regime, and the evidence showed amenity and planning impacts. Declaratory relief therefore had utility to denounce and deter the unlawful conduct, and an injunction restraining further development in breach of s 76A(1) was appropriate. It was just, quick and cheap to adjourn the remaining prayers while the council assessed the latest s 96 modification application.

Jurisdiction
Australia
Judgment Date
13 August 2012
Procedural Posture
Class 4 Proceedings for Declarations and Injunctions Concerning Building Works in Breach of Development Consent / Final Hearing Part Heard; Declarations and Injunctive Relief Granted on Prayers 1, 2 and 3, With Prayers 4, 5 and 6 Adjourned
Outcome
Declarations and injunctive relief granted; remaining prayers adjourned; costs reserved; proceedings stood over for further directions.
Legal Topics
['building Works in Breach of Development Consent' 'unauthorised Development' 'section 96 Modification Application' 'declaratory Relief' 'injunctive Relief' 'amenity Impacts']
['environmental Planning and Development' 'local Government' 'injunctions and Declarations'] ['building Works in Breach of Development Consent' 'unauthorised Development' 'section 96 Modification Application' 'declaratory Relief' 'injunctive Relief' 'amenity Impacts']

Case Brief

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Procedural Posture

Class 4 Proceedings for Declarations and Injunctions Concerning Building Works in Breach of Development Consent / Final Hearing Part Heard; Declarations and Injunctive Relief Granted on Prayers 1, 2 and 3, With Prayers 4, 5 and 6 Adjourned

Legal Issues

  1. 1 ['Whether alterations and additions to the premises were carried out otherwise than in accordance with the development consent and in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979.' "Whether declaratory relief had utility notwithstanding the respondent's admissions." 'Whether the respondent should be restrained from carrying out further development in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979.' "Whether the remaining relief should be adjourned to allow the council to assess the respondent's latest s 96 modification application."]

Ratio Decidendi

Mr Ross admitted carrying out works contrary to the consent, the breaches were not merely technical, the works had no beneficial effect on the locality and were contrary to the planning regime, and the evidence showed amenity and planning impacts. Declaratory relief therefore had utility to denounce and deter the unlawful conduct, and an injunction restraining further development in breach of s 76A(1) was appropriate. It was just, quick and cheap to adjourn the remaining prayers while the council assessed the latest s 96 modification application.

Court Disposition

Declarations and injunctive relief granted; remaining prayers adjourned; costs reserved; proceedings stood over for further directions.

Orders

  • ['Declares that alterations and additions to the dwelling house at 8 Bayview Street, Northwood have been carried out not in accordance with the Development Consent DA325/07 of the Lane Cove Council issued on 2 April 2008.' 'Declares that the alterations and additions to the premises have been carried out in breach...