Armidale Dumaresq Council v Post

Land and Environment Court

New South Wales

Medium Neutral Citation:

Armidale Dumaresq Council v Post [2012] NSWLEC 54

Decision date:

20 March 2012

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

The orders of the Court are:

(1) by consent, the respondent, his servants and agents, is restrained from accessing 45 Gentles Road, Armidale, being Lot 61 DP 755808 ("the property"), by motor vehicle or motor cycle via any road and/or driveway passing through, alongside or running off, the roadway or driveway connecting the properties know as 53, 53A, 53B and 53C, The Avenue, Armidale;

(2) by consent, the respondent, his servants and agents, is restrained from accessing the property by motor vehicle or motor cycle on any road or driveway that has not been approved by the applicant and constructed in accordance with a development application approved by the applicant;

(3) by consent, orders 1 and 2 above are suspended from operation for a period of 6 months from the date of these orders;

(4) the respondent is to pay the applicant's costs of the proceedings;

(5)the exhibits are to be returned; and

(6)liberty to restore on three days notice.

Catchwords:

INJUNCTIONS: respondent restrained from unlawful use of right of way - Impecuniosity of respondent irrelevant to making of costs order

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 121B

Cases Cited:

Kennedy v NSW Minister for Planning [2010] NSWLEC 269

Category:

Principal judgment

Parties:

Armidale Dumaresq Council (Applicant)
Mr Roger Post (Respondent)

Representation:

Mr C S Leahy (Solicitor) (Applicant)
N/A (Respondent)
Liston and Clifton Solicitors (Applicant)
N/A (Respondent)

File Number(s):

41127 of 2011

Ex Tempore Judgment

The Council Seeks Injunctive Relief

1. This was initially an ex parte application by the Armidale Dumaresq Council ("the council") for injunctive relief against the applicant, Mr Roger Post, from accessing his property at 45 Gentles Road, Armidale being Lot 61 DP 755808 ("the property") by motor vehicle or motor cycle using an unauthorised driveway passing through and connecting properties at 53, 53A, 53B and 53C The Avenue, Armidale. Instead, the council wants Mr Post to use a road that he agreed to use pursuant to a modified development consent granted on 20 October 2011.

1. Mr Post had, until the commencement of this year, been an active participant in the proceedings. However, Mr Post did not appear when the matter was listed for directions before Craig J on 3 February 2012 and, at least up until 2 pm today, had not participated in the proceedings since.

1. In order to satisfy the Court that Mr Post was aware of today's hearing date, at the commencement of the hearing, Mr Christopher Leahy, the solicitor for the council with carriage of the matter, indicated to the Court that Mr Post had informed him earlier this year that he would no longer be active in the proceedings and that he did not intend to rely on any evidence refuting the council's claims. Mr Leahy also relied on an affidavit of service of Mr Nathan Hennessey, sworn on…