Hawkesbury City Council v Sammut

[2000] NSWLEC 255

Land and Environment Court

of New South Wales

CITATION:

Hawkesbury City Council v Sammut [2000] NSWLEC 255

PARTIES:

APPLICANT
Hawkesbury City Council

RESPONDENT
Sammut

FILE NUMBER(S):

40202 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Injunctions and Declarations :- occupation of shed restrained pending further investigation of council’s power to grant development consent.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

31/8/00

EX TEMPORE
JUDGMENT DATE :

08/31/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen (Barrister)

SOLICITORS
Abbott Tout

RESPONDENT
Mr P Tomasetti (Barrister)

SOLICITORS
Storey & Gough

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40202 of 1999
CORAM: Cowdroy J
DECISION DATE: 31/8/00

Hawkesbury City Council

Applicant

v

Daniel Sammut

Respondent

JUDGMENT

1. In this matter Mr Sammut (“the respondent”), through no apparent fault of his own, has unwittingly become involved in a complex legal situation involving the erection of a shed (“the shed”) for which he had received both development consent and building consent.

2. The Hawkesbury City Council (“the council”) has made application for an order restraining the respondent from occupying or carrying out further work on the shed. The affidavit sworn today by the respondent establishes that his proposed occupation of the shed is for the purposes of repairing farm machinery. The respondent has said that there is no need to do any further work on the shed at this stage but that he would like to occupy the shed pending the determination of the legal proceedings.

3. The building which currently exists has not apparently been inspected for safety or other matters which might impact upon council’s ultimate approval for occupation. It is also apparent that, whilst the respondent is no doubt inconvenienced because he is not able to occupy the shed, he has in the past been able to carry out his business without the need for such occupation. That is, the respondent’s business has been conducted and the shed has not been essential for that purpose.

4. The affidavit of the respondent details the financial hardship that has been occasioned to date, most of which relates to the setting up and the construction of the building and the purchase of the land. The issue of damage is something which does not directly impact upon the immediate urgency of the occupation of the shed.

5. Taking into consideration the needs of the community in ensuring that environmental laws are upheld, I consider those interests outweigh the interests of the respondent. In those circumstances the Court proposes to give effect to the injunction that was granted last night and suspended until 2 o’clock today on the basis of an undertaking as to damages which has been offered by council.

6. The Court orders:-

i) That the order made restraining the carrying out of further work on the property in connection with development consent number M609 of 1998, as is detailed in the orders made on 30 August 2000, be continued and take effect forthwith.

ii) That the injunction granted is done so on the basis of the undertaking as to damages offered by Council.

iii) Proceedings no. 40202 of 1999, be listed with the class 1 proceedings in the same matter which I am informed is for hearing on 25, 26 and 27 September 2000.

iv) The restraining order is to continue until further order of the Court.

v) The question of costs is reserved.

vi) It is noted that Mr Sammut is present in Court.