Willoughby City Council v Dasco Design and Construction P/L & Anor. [2000] NSWLEC 257

Willoughby City Council v Dasco Design and Construction P/L & Anor. [2000] NSWLEC 257

The Respondents carried out works not in accordance with the development consent and construction certificate, thereby breaching s 76A(1) of the Environmental Planning and Assessment Act 1979. Although some works were undertaken under an honestly held mistaken belief that the s 96 modification application had been approved, that belief was not reasonably held and could not remain honest or reasonable after the Council's officer told Mr Bechara on 23 June 2000 that approval had not been granted. The unlawful works had adverse privacy consequences that were not trifling, the Respondents showed disregard for the Council's authority and planning law, and no evidence showed that rectification...

Jurisdiction
Australia
Judgment Date
13 December 2000
Procedural Posture
Class 4 Civil Enforcement Proceedings Seeking Declaratory and Injunctive Relief for Alleged Breaches of the Environmental Planning and Assessment Act 1979 / Final Hearing and Judgment
Outcome
Declaratory and mandatory injunctive relief granted; operation of the mandatory injunction suspended for four months with liberty to apply; costs reserved.
Legal Topics
['development Consent' 'unlawful Building Works' 'modification Application Under S 96' 'building Certificate' 'mandatory Injunction' 'judicial Discretion Under S 124']
['environmental Planning and Assessment' 'land and Environment Court Civil Enforcement'] ['development Consent' 'unlawful Building Works' 'modification Application Under S 96' 'building Certificate' 'mandatory Injunction' 'judicial Discretion Under S 124']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings Seeking Declaratory and Injunctive Relief for Alleged Breaches of the Environmental Planning and Assessment Act 1979 / Final Hearing and Judgment

Legal Issues

  1. 1 ['Whether the Respondents carried out works in breach of the Environmental Planning and Assessment Act 1979 by deviating from the development consent and construction certificate.' 'Whether the Court should exercise its discretion under s 124 to grant declaratory and mandatory injunctive relief.' "Whether the Respondents' mistaken belief that their s 96 modification application had been approved justified withholding relief." 'Whether a modification application under s 96 can be approved where the relevant works have already been carried out.' 'Whether any mandatory injunction should be suspended to allow the Respondents to seek to regularise the breaches.']

Ratio Decidendi

The Respondents carried out works not in accordance with the development consent and construction certificate, thereby breaching s 76A(1) of the Environmental Planning and Assessment Act 1979. Although some works were undertaken under an honestly held mistaken belief that the s 96 modification application had been approved, that belief was not reasonably held and could not remain honest or reasonable after the Council's officer told Mr Bechara on 23 June 2000 that approval had not been granted. The unlawful works had adverse privacy consequences that were not trifling, the Respondents showed disregard for the Council's authority and planning law, and no evidence showed that rectification...

Court Disposition

Declaratory and mandatory injunctive relief granted; operation of the mandatory injunction suspended for four months with liberty to apply; costs reserved.

Orders

  • ['Declare that the Respondents have carried out on property known as 65 Sunnyside Crescent, Castlecrag, works as described under the heading "Works" in the Amended class 4 application filed on 9 August 2000 in breach of Environmental Planning and Assessment Act 1979, s 76A(1).' 'Order that each of the Respondents,...