Parramatta City Council v Zreik [2012] NSWLEC 141

Parramatta City Council v Zreik [2012] NSWLEC 141

The Court had power under Pt 7 r 7.3 of the Land and Environment Court Rules 2007 because Orders 1, 2 and 3 made on 3 May 2011 were conditional: Order 3 contemplated self-executing vacation of the restraint upon satisfaction of Order 2, potentially requiring further judicial determination. However, discretion was refused because Mr Deeb had not acted in a manner demonstrating likely timely compliance: he delayed appealing the refusal of his development application, entered 12 month residential leases after the consent orders, delayed giving effective notices to tenants, filed the motion one day before the suspension expired, and remained focused on obtaining a further development consent...

Jurisdiction
Australia
Judgment Date
22 June 2012
Procedural Posture
Class 4 Proceedings; Interlocutory Application / Second Respondent's Notice of Motion Dated 2 May 2012 Seeking a Three Month Extension of the Suspension of an Order Made on 3 May 2011
Outcome
The second respondent's notice of motion was dismissed, the stay made on 29 May 2012 was discharged, and the second respondent was ordered to pay the applicant's costs of the motion.
Legal Topics
['consent Orders' 'variation of Orders' 'extension of Time' 'conditional Orders' 'development Consent Compliance' 'injunctive Restraint on Land Use']
['planning and Environment Law' 'civil Procedure'] ['consent Orders' 'variation of Orders' 'extension of Time' 'conditional Orders' 'development Consent Compliance' 'injunctive Restraint on Land Use']

Case Brief

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Procedural Posture

Class 4 Proceedings; Interlocutory Application / Second Respondent's Notice of Motion Dated 2 May 2012 Seeking a Three Month Extension of the Suspension of an Order Made on 3 May 2011

Legal Issues

  1. 1 ['Whether Pt 36 r 36.16 of the Uniform Civil Procedure Rules 2005 gave power to vary Order 2 made on 3 May 2011.' 'Whether Pt 7 r 7.3 of the Land and Environment Court Rules 2007 gave power to extend the period fixed by the orders.' 'Whether the orders made on 3 May 2011 were conditional orders such that the Court retained power to extend time.' 'Whether discretion should be exercised to extend the suspension of the restraint for a further three months.']

Ratio Decidendi

The Court had power under Pt 7 r 7.3 of the Land and Environment Court Rules 2007 because Orders 1, 2 and 3 made on 3 May 2011 were conditional: Order 3 contemplated self-executing vacation of the restraint upon satisfaction of Order 2, potentially requiring further judicial determination. However, discretion was refused because Mr Deeb had not acted in a manner demonstrating likely timely compliance: he delayed appealing the refusal of his development application, entered 12 month residential leases after the consent orders, delayed giving effective notices to tenants, filed the motion one day before the suspension expired, and remained focused on obtaining a further development consent...

Court Disposition

The second respondent's notice of motion was dismissed, the stay made on 29 May 2012 was discharged, and the second respondent was ordered to pay the applicant's costs of the motion.

Orders

  • ["The second respondent's notice of motion dated 2 May 2012 is dismissed." 'Order 1 of orders made on 29 May 2012 is discharged.' "The second respondent must pay the applicant's costs of the notice of motion." 'Exhibits may be returned.']