Penrith City Council v Settlers Estate Pty Ltd (No 2) [2020] NSWLEC 128

Penrith City Council v Settlers Estate Pty Ltd (No 2) [2020] NSWLEC 128

The approved Stage 3 Roads and Drainage CC plans and the Second Controlled Activity Approval authorised Drainage Line A, the Culvert and associated minor works on the eastern side of the watercourse and within the limit of works line. The respondents constructed Drainage Line A and the Culvert so that they transected the watercourse to the western side, and carried out channelling works outside the approved limit and without authorisation under the Stage 1 or Stage 3 consents, construction certificates, controlled activity approvals, general terms of approval, or NRAR email. The impugned works were therefore carried out contrary to the relevant approvals and in breach of s 4.2 of the...

Jurisdiction
Australia
Judgment Date
04 September 2020
Procedural Posture
Class 4 Civil Enforcement Proceedings / Determination of Separate Questions on Breach
Outcome
Separate questions answered in the affirmative; respondents ordered to pay the Council's costs of the hearing of the separate questions.
Legal Topics
['development Consent Compliance' 'controlled Activity Approvals' 'construction Certificates' 'separate Questions' 'riparian Corridor Works']
['environmental Planning and Assessment' 'water Management' 'civil Enforcement'] ['development Consent Compliance' 'controlled Activity Approvals' 'construction Certificates' 'separate Questions' 'riparian Corridor Works']

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Determination of Separate Questions on Breach

Legal Issues

  1. 1 ['Whether the construction of Drainage Line A and the Culvert was carried out in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 by not being in accordance with the Stage 3 Consent, including the Stage 3 Roads and Drainage CC.' 'Whether the construction of Drainage Line A and the Culvert was carried out in breach of ss 91E or 91G of the Water Management Act 2000 by not being in accordance with the First Activity Approval and/or the Second Activity Approval.' 'Whether the Channelling Works were carried out in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 by not being in accordance with the Stage 1 Consent and/or the Stage 3 Consent.' 'Whether the Channelling Works were carried out in breach of ss 91E or 91G of the Water Management Act 2000 by not being in accordance with the First Activity Approval or the Second Activity Approval.' 'Whether the relevant consents, construction certificates or controlled activity approvals authorised the impugned works in the location where they were carried out.']

Ratio Decidendi

The approved Stage 3 Roads and Drainage CC plans and the Second Controlled Activity Approval authorised Drainage Line A, the Culvert and associated minor works on the eastern side of the watercourse and within the limit of works line. The respondents constructed Drainage Line A and the Culvert so that they transected the watercourse to the western side, and carried out channelling works outside the approved limit and without authorisation under the Stage 1 or Stage 3 consents, construction certificates, controlled activity approvals, general terms of approval, or NRAR email. The impugned works were therefore carried out contrary to the relevant approvals and in breach of s 4.2 of the...

Court Disposition

Separate questions answered in the affirmative; respondents ordered to pay the Council's costs of the hearing of the separate questions.

Orders

  • ['The separate questions must be answered in the affirmative.' "The respondents are to pay the Council's costs of the hearing of the separate questions." 'The exhibits are to be returned.' 'The matter is relisted before the List Judge for further directions on 18 September 2020.']