Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127

Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127

The evidence and admissions established repeated and continuing breaches by the respondents of conditions 3, 3A, 3B, 3E and 5 of the Development Consent, amounting to breach of s 76A(1) of the Environmental Planning and Assessment Act 1979. The taxi evidence supported the inference that the Property was being used as a taxi changeover base, not merely for ancillary service station purposes. An adjournment under s 124(3) was refused because the proposed modification would not remedy all breaches, no undertaking to cease breaches was offered, the modification application was lodged only after proceedings commenced and close to hearing, and it sought in effect what had previously been...

Jurisdiction
Australia
Judgment Date
29 July 2009
Procedural Posture
Class 4 Civil Enforcement Proceedings Seeking Declarations and Injunctive Relief for Breach of Development Consent Conditions / Ex Tempore Judgment After Hearing; Respondents' Application for Adjournment Under S 124(3) Dismissed and Final Relief Determined
Outcome
Relief granted to the applicant; respondents' application for an adjournment under s 124(3) dismissed; declaration, injunction and costs orders made against the respondents.
Legal Topics
['breach of Development Consent Conditions' 'injunctions and Declarations' 'use of Land as Service Station and Taxi Changeover Base' 'application to Adjourn Proceedings Under S 124(3) of the Environmental Planning and Assessment Act 1979' 'costs']
['planning and Environment Law' 'civil Enforcement' 'development Consent'] ['breach of Development Consent Conditions' 'injunctions and Declarations' 'use of Land as Service Station and Taxi Changeover Base' 'application to Adjourn Proceedings Under S 124(3) of the Environmental Planning and Assessment Act 1979' 'costs']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings Seeking Declarations and Injunctive Relief for Breach of Development Consent Conditions / Ex Tempore Judgment After Hearing; Respondents' Application for Adjournment Under S 124(3) Dismissed and Final Relief Determined

Legal Issues

  1. 1 ['Whether the respondents breached s 76A(1) of the Environmental Planning and Assessment Act 1979 by using the Property contrary to conditions 3, 3A, 3B, 3E and 5 of Development Consent No. 9898 as modified on 23 January 2009.' 'Whether the Property was being used as a taxi changeover base contrary to condition 3A.' 'Whether the proceedings should be adjourned under s 124(3) of the Environmental Planning and Assessment Act 1979 because the respondents had lodged an application to modify the Development Consent.' "Whether injunctive relief and a declaration were appropriate responses to the respondents' breaches." 'Whether the applicant should receive its costs.']

Ratio Decidendi

The evidence and admissions established repeated and continuing breaches by the respondents of conditions 3, 3A, 3B, 3E and 5 of the Development Consent, amounting to breach of s 76A(1) of the Environmental Planning and Assessment Act 1979. The taxi evidence supported the inference that the Property was being used as a taxi changeover base, not merely for ancillary service station purposes. An adjournment under s 124(3) was refused because the proposed modification would not remedy all breaches, no undertaking to cease breaches was offered, the modification application was lodged only after proceedings commenced and close to hearing, and it sought in effect what had previously been...

Court Disposition

Relief granted to the applicant; respondents' application for an adjournment under s 124(3) dismissed; declaration, injunction and costs orders made against the respondents.

Orders

  • ['A declaration that the first and second respondents have, themselves or by their servants and agents, breached section 76A(1) of the Environmental Planning and Assessment Act 1979 by carrying out development being the use of land Lot 12 Deposited Plan 629250 and known as 281 New Canterbury Road, Lewisham, contrary...