Sutherland Shire Council v Sud [2015] NSWLEC 44

Sutherland Shire Council v Sud [2015] NSWLEC 44

Section 127(7) of the EPA Act does not bar the making of civil remedial or restraining orders under s 124 after a criminal conviction has been entered in relation to the same events, provided the civil proceedings were not pending at the time of conviction. The extended roof slab and associated works breached the development consent, their removal is appropriate to address environmental harm, and use of the roof as a recreational area is not permitted under the development consent. Remedial orders for demolition, removal of fill and the absorption trench, and restraining orders against roof terrace use are appropriate.

Parties
Applicant: Sutherland Shire Council; First Respondent: Veni Rani Sud; Second Respondent: Julius Sud
Jurisdiction
Australia
Judgment Date
24 August 2015
Procedural Posture
Civil Enforcement / Final Judgment After Hearing
Outcome
Orders granted in favour of the Applicant (Council); permanent stay of demolition order dismissed
Legal Topics
Development Consent, Breach of Planning Controls, Civil Enforcement, Land Use, Abuse of Process, Demolition Order, Remedial Orders, Restraining Orders
Environmental Law Planning Law Development Consent Breach of Planning Controls Civil Enforcement Land Use Abuse of Process Demolition Order +2 more

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Parties

Sutherland Shire Council

Applicant

Veni Rani Sud

First Respondent

Julius Sud

Second Respondent

Procedural Posture

Civil Enforcement / Final Judgment After Hearing

Legal Issues

  1. 1 Whether civil enforcement proceedings under s 123 of the EPA Act after conviction for an offence under s 125(1) of the EPA Act constitute an abuse of process or double punishment
  2. 2 Whether the extension of a roof slab and related works breached the development consent and warrant demolition and other remedial orders
  3. 3 Whether the development consent authorised the use of the roof as a recreational terrace

Ratio Decidendi

Section 127(7) of the EPA Act does not bar the making of civil remedial or restraining orders under s 124 after a criminal conviction has been entered in relation to the same events, provided the civil proceedings were not pending at the time of conviction. The extended roof slab and associated works breached the development consent, their removal is appropriate to address environmental harm, and use of the roof as a recreational area is not permitted under the development consent. Remedial orders for demolition, removal of fill and the absorption trench, and restraining orders against roof terrace use are appropriate.

Court Disposition

Orders granted in favour of the Applicant (Council); permanent stay of demolition order dismissed

Orders

  • Declare the Second Respondent breached the development consent by roof extension, fill and absorption trench works within 3m of protected trees.
  • Declare the development consent does not authorise use of the roof as a recreational or terrace area.