Shoalhaven City Council v Ellis [2012] NSWLEC 225

Shoalhaven City Council v Ellis [2012] NSWLEC 225

The Court had jurisdiction and the respondents' constitutional, Free State of Australia, fee simple and trespass arguments did not exempt them from New South Wales planning law. Each respondent had erected and used buildings and ancillary structures as dwellings without development consent on land where consent was required and could not be granted under the applicable zoning. The public interest in enforcing the Environmental Planning and Assessment Act 1979, the absence of any defence on the merits, the absence of realistic rezoning prospects, and safety concerns justified declarations and restraining orders, but inherent hardship warranted an eight week stay of the orders restraining use.

Jurisdiction
Australia
Judgment Date
27 September 2012
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment
Outcome
Declarations and restraining orders made for the applicant in each proceeding; orders restraining or preventing use stayed until and including 22 November 2012; respondents ordered to pay the applicant's costs.
Legal Topics
['unlawfully Constructed Dwellings' 'use of Land Without Development Consent' 'jurisdiction of the Land and Environment Court' 'fee Simple Interests and Statutory Planning Controls' 'orders Restraining Use of Land' 'stay of Restraining Orders']
['environmental Planning and Assessment' 'land and Environment' 'constitutional Law' 'civil Enforcement'] ['unlawfully Constructed Dwellings' 'use of Land Without Development Consent' 'jurisdiction of the Land and Environment Court' 'fee Simple Interests and Statutory Planning Controls' 'orders Restraining Use of Land' 'stay of Restraining Orders']

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment

Legal Issues

  1. 1 ['Whether the Land and Environment Court had jurisdiction to determine the proceedings and constitutional objections raised by the respondents.' "Whether the respondents' asserted citizenship of the Free State of Australia or fee simple ownership exempted them from New South Wales planning law." "Whether buildings and structures on the respondents' land were erected and used as dwellings without development consent contrary to the Environmental Planning and Assessment Act 1979." 'Whether the Court should exercise its discretion to make declarations and orders restraining use of the land and structures, and whether those orders should be stayed.']

Ratio Decidendi

The Court had jurisdiction and the respondents' constitutional, Free State of Australia, fee simple and trespass arguments did not exempt them from New South Wales planning law. Each respondent had erected and used buildings and ancillary structures as dwellings without development consent on land where consent was required and could not be granted under the applicable zoning. The public interest in enforcing the Environmental Planning and Assessment Act 1979, the absence of any defence on the merits, the absence of realistic rezoning prospects, and safety concerns justified declarations and restraining orders, but inherent hardship warranted an eight week stay of the orders restraining use.

Court Disposition

Declarations and restraining orders made for the applicant in each proceeding; orders restraining or preventing use stayed until and including 22 November 2012; respondents ordered to pay the applicant's costs.

Orders

  • ['In matter No 40257 of 2012, declaration that buildings and ancillary structures on Lot 63 DP 11629, also known as Lot 63 Invermay Avenue, Tomerong, were erected without development consent under Part 4 of the Environmental Planning and Assessment Act 1979 and used as a dwelling without development consent.' 'In...