Penrith City Council v Margolin & Ors [1989] NSWLEC 194

Penrith City Council v Margolin & Ors [1989] NSWLEC 194

Because the unauthorised use had continued for a long time to Council's knowledge, the respondents undertook to lodge and diligently prosecute an expedited Class 1 appeal and to cease the unauthorised use if consent were refused, and Council undertook not to challenge the competence of the appeal, the Court was satisfied that the Class 4 hearing should be deferred and that restraining the use pending the proposed appeal would impose hardship exceeding the appropriateness of immediate public law enforcement.

Jurisdiction
Australia
Judgment Date
12 May 1989
Procedural Posture
Class 4 Application for Declarations and Other Orders Concerning Alleged Use of Premises in Breach of an Environmental Planning Instrument / Motion to Vacate Hearing Dates
Outcome
Motion granted; hearing dates vacated; costs ordered against the respondents; matter stood over for further mention.
Legal Topics
['unauthorised Land Use' 'development Application' 'deemed Refusal' 'interlocutory Orders' 'vacating Hearing Dates' 'costs Thrown Away']
['environmental Planning Law' 'land and Environment Court Procedure'] ['unauthorised Land Use' 'development Application' 'deemed Refusal' 'interlocutory Orders' 'vacating Hearing Dates' 'costs Thrown Away']

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Procedural Posture

Class 4 Application for Declarations and Other Orders Concerning Alleged Use of Premises in Breach of an Environmental Planning Instrument / Motion to Vacate Hearing Dates

Legal Issues

  1. 1 ['Whether the hearing dates for the Class 4 proceedings should be vacated pending a proposed Class 1 development appeal against deemed refusal of the development application.' 'Whether interlocutory orders restraining the unauthorised use should be made despite the proposed appeal and undertakings.' 'Whether costs thrown away by vacating the hearing dates should be paid by the respondents.']

Ratio Decidendi

Because the unauthorised use had continued for a long time to Council's knowledge, the respondents undertook to lodge and diligently prosecute an expedited Class 1 appeal and to cease the unauthorised use if consent were refused, and Council undertook not to challenge the competence of the appeal, the Court was satisfied that the Class 4 hearing should be deferred and that restraining the use pending the proposed appeal would impose hardship exceeding the appropriateness of immediate public law enforcement.

Court Disposition

Motion granted; hearing dates vacated; costs ordered against the respondents; matter stood over for further mention.

Orders

  • ['The undertakings given by Senior Counsel for both parties are noted.' 'The hearing dates for Matter No.40221 of 1988 on 22nd to 26th May, 1989 are vacated.' 'The claimant respondents are ordered to pay the costs of the applicant thrown away by the order and the costs of the motion.' 'The matter is stood over for...