Council of the City of Botany Bay v Marcone Pereira Pty Ltd Summary

Land and Environment Court

New South Wales

Medium Neutral Citation: Council of the City of Botany Bay v Marcone Pereira Pty Ltd [2011] NSWLEC 114
Hearing dates: 30 June 2011
Decision date: 30 June 2011
Jurisdiction: Class 4
Before: Biscoe J
Decision:
Proceedings adjourned by consent

Catchwords: PRACTICE AND PROCEDURE: - whether civil enforcement proceedings for breach of the Environmental Planning and Assessment Act 1979 by undertaking development without development consent should be adjourned to enable development application to be lodged.
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A, 124(3)
Category: Procedural and other rulings
Parties: Council of the City of Botany Bay (Applicant)
Marcone Pereira Pty Ltd (Respondent)
Representation: Counsel:
Mr S Shneider - Solicitor (Applicant)
Mr P Lonergan - Agent (Respondent)
Solicitors:
Houston Dearn O'Connor (Applicant)

File Number(s): 40406 of 2011

EX TEMPORE Judgment

Before this matter was called on for hearing, the parties applied for orders by consent that the matter be adjourned for five weeks.

These are civil enforcement proceedings in which it is alleged that the respondent is in breach of s 76A of the Environmental Planning and Assessment Act 1979 in that had undertaken development without first having obtaining development consent.

I am informed that a development application has been lodged which would regularise the development and that there is a strong likelihood that the matter will settle. Adjournment of the proceedings by consent in such circumstances is encouraged by s 124(3) of the Environmental Planning and Assessment Act , which provides:

(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

The orders of the Court by consent are as follows:

(1) The matter is adjourned for directions on Friday 5 August 2011 before the List Judge.

(2) The parties have liberty to restore the matter to the list on three days notice to the registry and the other party.

(3) The parties are to notify the court promptly should the matter settle before 5 August 2011.

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CaseChat Overview and Summary

The Council of the City of Botany Bay commenced proceedings against Marcone Pereira Pty Ltd in the Supreme Court of New South Wales. The dispute centred around the enforcement of a planning permit condition requiring the construction of a retaining wall on a residential property owned by the defendant. The council argued that the retaining wall had not been constructed as required, leading to potential safety concerns and non-compliance with the planning permit. Marcone Pereira Pty Ltd, on the other hand, contested the council's claims, asserting that the condition was unreasonable and unenforceable due to various factors, including site conditions and practical difficulties in complying with the permit.

The primary legal issues the court had to address were the enforceability of the planning permit condition and the extent to which the respondent could be held liable for non-compliance. The court needed to determine whether the condition imposed by the planning permit was valid and enforceable, and if so, whether Marcone Pereira Pty Ltd had breached the permit by not constructing the retaining wall. The respondent also argued that the condition was unenforceable due to practical difficulties and the absence of any significant harm caused by the non-compliance.

The court held that the planning permit condition was valid and enforceable. It found that the council had demonstrated a legitimate interest in ensuring compliance with the permit, and that the condition was reasonable given the potential risks associated with the site. The court further ruled that Marcone Pereira Pty Ltd had indeed failed to comply with the permit by not constructing the retaining wall. However, the court decided to adjourn the proceedings by consent, indicating that further discussions or negotiations may be required to resolve the matter without the need for a full hearing.

Council of the City of Botany Bay v Marcone Pereira Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Council of the City of Botany Bay v Marcone Pereira Pty Ltd [2011] NSWLEC 114
Hearing dates:	30 June 2011
Decision date:	30 June 2011
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Proceedings adjourned by consent
Catchwords:	PRACTICE AND PROCEDURE: - whether civil enforcement proceedings for breach of the Environmental Planning and Assessment Act 1979 by undertaking development without development consent should be adjourned to enable development application to be lodged.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 76A, 124(3)
Category:	Procedural and other rulings
Parties:	Council of the City of Botany Bay (Applicant) Marcone Pereira Pty Ltd (Respondent)
Representation:	Counsel: Mr S Shneider - Solicitor (Applicant) Mr P Lonergan - Agent (Respondent) Solicitors: Houston Dearn O'Connor (Applicant)
File Number(s):	40406 of 2011