The Hills Shire Council v Needham (No 2) [2018] NSWLEC 98

The Hills Shire Council v Needham (No 2) [2018] NSWLEC 98

The Council proved on the balance of probabilities that the Respondent’s land was being used regularly and at significant scale for events and functions amounting to use as a prohibited function centre, and for commercial videography and photography amounting to prohibited commercial premises, in the RU6 Transition zone. The Respondent filed no defence or evidence establishing lawful bed and breakfast use or exempt development. Given the continued unlawful use despite warnings, the breach of interim court orders, impacts on neighbours, and fire safety evidence, the Court exercised its discretion to grant declaratory and restraining relief and ordered indemnity costs.

Jurisdiction
Australia
Judgment Date
26 June 2018
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment With Final Orders Made by Addendum
Outcome
Application allowed; declarations and restraining orders made; Respondent ordered to pay the Applicant's costs on an indemnity basis.
Legal Topics
['prohibited Development' 'function Centre in RU6 Transition Zone' 'commercial Premises in RU6 Transition Zone' 'exempt Development' 'declarations and Restraining Orders' 'indemnity Costs']
['environment and Planning' 'civil Enforcement' 'costs'] ['prohibited Development' 'function Centre in RU6 Transition Zone' 'commercial Premises in RU6 Transition Zone' 'exempt Development' 'declarations and Restraining Orders' 'indemnity Costs']

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment With Final Orders Made by Addendum

Legal Issues

  1. 1 ['Whether the Respondent was unlawfully carrying out development contrary to s 76B of the Environmental Planning and Assessment Act 1979 by using the land for the prohibited purpose of a function centre.' 'Whether the Respondent was unlawfully using the land for the prohibited purpose of commercial premises, including commercial photography and commercial videography.' 'Whether filming or the erection of tents or marquees was exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' 'Whether the Court should exercise its discretion to make a declaration and restraining orders under s 124 of the Environmental Planning and Assessment Act 1979.' 'Whether the Applicant should receive costs on an indemnity basis.']

Ratio Decidendi

The Council proved on the balance of probabilities that the Respondent’s land was being used regularly and at significant scale for events and functions amounting to use as a prohibited function centre, and for commercial videography and photography amounting to prohibited commercial premises, in the RU6 Transition zone. The Respondent filed no defence or evidence establishing lawful bed and breakfast use or exempt development. Given the continued unlawful use despite warnings, the breach of interim court orders, impacts on neighbours, and fire safety evidence, the Court exercised its discretion to grant declaratory and restraining relief and ordered indemnity costs.

Court Disposition

Application allowed; declarations and restraining orders made; Respondent ordered to pay the Applicant's costs on an indemnity basis.

Orders

  • ["The Court declares that the Respondent is unlawfully carrying out development contrary to the provisions of section 76B of the Environmental Planning and Assessment Act 1979 on the land known as Lot 1 in Deposited Plan 31243 (11) Ascot Road, Kenthurst in that the Respondent is using the Land for the prohibited...