Penrith City Council v Dincel Construction System Pty Limited and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198

Penrith City Council v Dincel Construction System Pty Limited and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198

The respondents were in breach of statutory approvals and orders under the Local Government Act 1993 (NSW) concerning the installation and operation of an On-Site Sewage Management System. Given the ongoing nature of the breach, the uncontested evidence, and the agreement between the parties, the Court exercised its discretion to grant declaratory and injunctive relief to mark the Court’s disapproval, deter repetition, and give effect to statutory requirements.

Parties
Applicant: Penrith City Council; First Respondent: Dincel Construction System Pty Limited; Second Respondent: Gaonor Pty Limited
Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Civil Enforcement (class 4) / Final Determination at First Instance
Outcome
Declarations and mandatory injunctive relief granted by consent. Respondents ordered to remediate works and pay Council’s costs.
Legal Topics
On Site Sewage Management System, Breach of Local Government Act, Declaratory Relief, Injunctive Relief
Environmental Law Local Government Law On Site Sewage Management System Breach of Local Government Act Declaratory Relief Injunctive Relief

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Parties

Penrith City Council

Applicant

Dincel Construction System Pty Limited

First Respondent

Gaonor Pty Limited

Second Respondent

Procedural Posture

Civil Enforcement (class 4) / Final Determination at First Instance

Legal Issues

  1. 1 Whether the respondents unlawfully installed and constructed an On-Site Sewage Management System (OSSM) in contravention of approval conditions under the Local Government Act 1993 (NSW)
  2. 2 Whether the operation of the OSSM was in ongoing contravention of the Act and Council approvals
  3. 3 Whether declaratory and injunctive relief is appropriate where the parties agree

Ratio Decidendi

The respondents were in breach of statutory approvals and orders under the Local Government Act 1993 (NSW) concerning the installation and operation of an On-Site Sewage Management System. Given the ongoing nature of the breach, the uncontested evidence, and the agreement between the parties, the Court exercised its discretion to grant declaratory and injunctive relief to mark the Court’s disapproval, deter repetition, and give effect to statutory requirements.

Court Disposition

Declarations and mandatory injunctive relief granted by consent. Respondents ordered to remediate works and pay Council’s costs.

Orders

  • Declaration of breach against Gaonor Pty Limited for unlawful installation and construction of an OSSM contrary to council approval conditions.
  • Declaration of breach against Gaonor Pty Limited for operation of the OSSM contrary to approval conditions.