Lane Cove Council v Ross

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Ross [2012] NSWLEC 153
Hearing dates:	6 July 2012
Decision date:	06 July 2012
Jurisdiction:	Class 4
Before:	Craig J
Decision:	Orders as set out at [13]
Catchwords:	INTERLOCUTORY ORDERS - building work in breach of development consent - substituted service of application - prima facie case of breach - undertaking as to damages given - interlocutory injunction granted
Legislation Cited:	Environmental Planning and Assessment Act 1979
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Raymond Ross (Respondent)
Representation:	COUNSEL S Griffiths (Solicitor) (Applicant) No appearance (Respondent) SOLICITORS Pikes & Verekers Lawyers (Applicant) No appearance (Respondent)
File Number(s):	40628 of 2012

ex tempore Judgment

1. By a summons filed on 28 June 2012, Lane Cove Council commenced proceedings in this Court in which it sought declarations and orders, the effect of which are directed to building work carried out on premises known as 8 Bayview Street, Northwood (the premises). That work is said to have been carried out in contravention of a development consent. The Council seeks to restrain further work that does not comply with that consent.

1. The Council also seeks interlocutory relief to restrain, until further order, the carrying out of building work to the second floor of those premises. The building work on that floor, according to the evidence presently available, reflects the work that is readily identified as being in breach of the relevant development consent.

1. The consent in question was granted by the Council on 2 April 2008. It authorised alterations and additions to the premises. It was a consent granted to Mr R Ross, the named respondent in these proceedings. That consent required that any work carried out in accordance with its terms "be strictly in accordance with drawings numbers 1 to 9 (inclusive) dated 27 February 2008 by Cheap - A - Plans." The reference to "Cheap" seems to be a reference to the drafter of the plans.

1. I have been provided with a copy of the plans identified in that consent, together with some sketches superimposed on those plans, indicating the extent to which building work has been carried out that does not appear to accord with those plans. In particular, the evidence suggests that, at the second floor level, the building slab has been extended beyond that shown for it on the plans and that there is located on that slab either partially constructed walls or a number of pallets of bricks indicating that the work carried out and to be carried out will not accord with the approved plans.

1. Some indication of the location of the intended brickwork is demonstrated by lines located on the slab on which bricks are standing, suggesting that they are the location of walls to be constructed. In short, neither the slab nor the brickwork lines appear to accord with the approved plans for the premises.

1. When the matter came before the Court today, the respondent, Mr Ross did not…