Lane Cove Council v Ross (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Ross (No 2) [2012] NSWLEC 160
Hearing dates:	12 July 2012
Decision date:	12 July 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [29].
Catchwords:	INTERLOCUTORY ORDERS - building works in breach of development consent - temporary injunction previously granted "until further order" - respondent admits breach of terms of consent - application to dissolve injunction - evidence of commercial prejudice to respondent - application refused but injunction limited in duration - consequential orders made.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 76A, 96
Cases Cited:	Lane Cove Council v Ross [2012] NSWLEC 153
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Raymond Ross (Respondent)
Representation:	Mr S Griffiths (Solicitor) (Applicant) Mr R Ross (in person) (Respondent) Pikes & Verekers Lawyers (Applicant) N/A (Respondent)
File Number(s):	40628 of 2012

ex tempore Judgment

The Council Obtains an Earlier Ex Parte Injunction

1. On 6 July 2012, in an ex parte hearing, Craig J, upon Lane Cove Council ("the council") giving the usual undertaking as to damages, restrained the respondent, Mr Raymond Ross, from laying any bricks or otherwise carrying out any building work on the second floor level of premises located at and known as 8 Bayview Street, Northwood ("the premises") "until further order" (Lane Cove Council v Ross [2012] NSWLEC 153).

1. His Honour was satisfied on the evidence before him that a prima facie case of breach of the law, namely, s 76A of the Environmental Planning and Assessment Act 1979 had been established (Lane Cove Council v Ross at [12]).

1. The background to the council's application for an injunction is set out in the decision of Craig J (at [3]-[8]).

1. Although his Honour was concerned initially that the respondent, Mr Raymond Ross, had not been personally served with the council's summons and supporting affidavit in accordance with the rules, the evidence demonstrated that there had been previous communication between the council and Mr Ross and that Mr Ross had been receiving documents sent to him from the council at both his post office box address and his email address. In addition, a conversation between an individual at H & D Studio Design, that had been engaged by Mr Ross to prepare documentation in relation to development at the premises and an individual employed by the council, indicated that Mr Ross had received the initiating summons and was in the process of making a s 96 modification application in order to regularise the unlawful works (Lane Cove Council v Ross at [7]).

1. On the basis of this evidence, Craig J was satisfied that Mr Ross had received sufficient notice of the proceedings and that the temporary injunction sought by the council could be granted.

1. Craig J made further orders with respect to the additional service of the summons, the supporting affidavit and the orders granting injunctive relief and stood the proceedings over to the duty judge today.

Mr…