Queanbeyan-Palerang Regional Council v Walker [2023] NSWLEC 146

Queanbeyan-Palerang Regional Council v Walker [2023] NSWLEC 146

The evidence established that the Respondents carried out earthworks, erected the Shed, constructed the Internal Driveway Works and constructed the Secondary Driveway Works on the Land without development consent, although those works required consent and did not qualify as exempt development. The Court was satisfied that the Respondents breached s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW), that no discretionary consideration warranted refusing relief, and that remedial and substituted performance orders were appropriate because of the Respondents' non-appearance, the environmental risks, and the need to remedy the breach.

Jurisdiction
Australia
Judgment Date
21 December 2023
Procedural Posture
Class 4 Civil Enforcement Proceedings Under S 9.45 of the Environmental Planning and Assessment Act 1979 (nsw) / Ex Parte Hearing; Principal Judgment on Declarations and Orders
Outcome
Declarations and orders made for the Council.
Legal Topics
['development Carried Out Without Consent' 'earthworks' 'farm Building or Shed' 'driveway Works' 'demolition and Restoration Orders' 'substituted Performance']
['environmental Planning and Assessment' 'civil Enforcement' 'land and Environment'] ['development Carried Out Without Consent' 'earthworks' 'farm Building or Shed' 'driveway Works' 'demolition and Restoration Orders' 'substituted Performance']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings Under S 9.45 of the Environmental Planning and Assessment Act 1979 (nsw) / Ex Parte Hearing; Principal Judgment on Declarations and Orders

Legal Issues

  1. 1 ['Whether the Respondents carried out development on the Land requiring development consent without such consent, contrary to s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether the earthworks, including fill deposited on the Land and Secondary Driveway Works, were exempt development.' 'Whether declarations and remedial orders should be made under s 9.46 of the Environmental Planning and Assessment Act 1979 (NSW).' "Whether orders should be made permitting the Council to enter the Land and carry out works if the Respondents failed to comply with the Court's orders."]

Ratio Decidendi

The evidence established that the Respondents carried out earthworks, erected the Shed, constructed the Internal Driveway Works and constructed the Secondary Driveway Works on the Land without development consent, although those works required consent and did not qualify as exempt development. The Court was satisfied that the Respondents breached s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW), that no discretionary consideration warranted refusing relief, and that remedial and substituted performance orders were appropriate because of the Respondents' non-appearance, the environmental risks, and the need to remedy the breach.

Court Disposition

Declarations and orders made for the Council.

Orders

  • ['Declared that, in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW), the Respondents carried out or permitted earthworks involving the depositing of fill on the Land without development consent.' 'Declared that, in breach of s 4.2 of the Environmental Planning and Assessment Act 1979...