Dincel Construction System Pty Ltd v Penrith City Council

In *Dincel Construction System Pty Ltd v Penrith City Council*, the Court of Appeal of New South Wales considered an appeal by Dincel Construction System Pty Ltd (Dincel) against orders made by the primary judge concerning breaches of environmental planning legislation. Dincel had imported fill, engaged in earthworks, constructed hardstand areas, and used land at 931 Mamre Road, Kemps Creek for storage without the necessary development consent. Dincel admitted these breaches, and the primary judge had ordered the cessation of use, removal of fill, and restoration of the premises, but suspended the injunctive relief.

The central legal issue before the Court of Appeal was whether the primary judge had erred in granting injunctive relief, specifically whether the decision constituted a *House v The King* error. This involved scrutinising the exercise of the primary judge's discretion in fashioning the orders for cessation, removal, and restoration.

The Court of Appeal found that while the primary judge had correctly identified the breaches, there was an error in the specific terms of the injunctive relief granted. The court reasoned that the orders for removal and restoration needed to be more precise to reflect the extent of the unlawful development. Consequently, the appeal was allowed in part, with specific orders being set aside and substituted. The court declared that Dincel had carried out development by the deposition of fill in breach of section 4.2 of the *Environmental Planning and Assessment Act 1979* (NSW). Furthermore, the court ordered the removal of unlawful works and restoration of the ground level of the premises, with an exception for a specific earthen platform. The appeal was otherwise dismissed, and no order was made as to costs.