Mid-Coast Council v Gazecki - [2025] NSWLEC 79

Land and Environment Court

New South Wales

Medium Neutral Citation: Mid-Coast Council v Gazecki and Anor [2025] NSWLEC 79
Hearing dates: 4 February, 5 March and 8 April 2025
Date of orders: 31 July 2025
Decision date: 31 July 2025
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [45]

Catchwords:
CONTEMPT— Practice and procedure — Contempt motions alleging breach of undertaking — Amended motion seeking leave to amend contempt motions — Filing and service of affidavit evidence — Leave granted

Legislation Cited:
Electronic Transactions Act 2000 (NSW), s 14G
Environmental Planning and Assessment Act 1979 (NSW), s 9.46
Oaths Act 1900 (NSW), s 34
Supreme Court Rules 1970 (NSW), Pt 55, r 7
Uniform Civil Procedure Rules 2005 (NSW), Sch 7, cl 3, rr 23.8, 31.19, 31.21, 35.1

Cases Cited:
Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139
Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 1231
Chiltern District Council v Keane [1985] 2 All ER 118; [1985] 1 WLR 619
McDonnell v Novello [2006] NSWSC 1186
Mid-Coast Council v Gazecki [2024] NSWLEC 88
Mid-Coast Council v Gazecki (No 2) [2024] NSWLEC 103
Novelly v Tamqia Pty Ltd (No 2) [2023] NSWSC 1091
Rafailidis v Camden Council [2015] NSWCA 185
Westpac Banking Corporation v Bruce Patrick Burke [2011] NSWSC 549

Category: Procedural rulings
Parties: Mid-Coast Council (Applicant)
John Janek Christopher Gazecki (First Respondent)
Natalie Marie Decorte (Second Respondent)
Representation:
Counsel:
A Jucha (Applicant)
P McDonald (First and Second Respondents)
Solicitors:
Local Government Legal (Applicant)
Clear Lawyers (First and Second Respondents)

File Number(s): 2024/00061055
Publication restriction: Nil

JUDGMENT

Introduction and outcome

By way of summons filed 16 February 2024, Mid-Coast Council (‘Council’) commenced Class 4 civil enforcement proceedings seeking declaratory and consequential relief against John Janek Christopher Gazecki and Natalie Marie Decorte (‘respondents’) relating to the carrying out of development comprising the construction of a new and/or enlarged dam (‘Dam 1’) on land at 1079 Upper Myall Road, Warranulla (‘land’) in 2022 and 2023.
Council sought declaratory relief, first, that the respondents had carried out works without development consent in contravention of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’); and second, that Ms Decorte (‘second respondent’) had breached the EPA Act by failing to comply with a development control order issued by Council on 15 December 2023 (‘DCO’) which contained a Restore Works Order (‘RWO’) relating to Dam 1.
Presently before the Court is a notice of motion filed by Council on 31 January 2025 and amended on 5 February 2025 (‘amended motion’), which seeks, first, leave to amend two notices of motion filed by Council on 19 September 2024 (‘contempt motions’) which seek orders that each respondent be punished for contempt of this Court for breaching their written undertakings given to this Court on 15 April 2024 to complete certain “Interim Works” in relation to Dam 1 (‘Undertaking’); and second, leave to rely upon certain affidavit evidence at the hearing of the contempt motions.
The respondents oppose the relief sought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mid-Coast Council v Gazecki

Details

AGLC: Mid-Coast Council v Gazecki [2025] NSWLEC 79
Case: [2025] NSWLEC 79
Decision Date: 31 July 2025

CaseChat Overview and Summary

Mid-Coast Council was the plaintiff and Gazecki was the defendant in the Supreme Court of New South Wales. The case centred around a dispute concerning the validity of a development approval granted by the Mid-Coast Council. The plaintiff sought to have the approval declared invalid on several grounds, including non-compliance with the planning scheme, procedural unfairness, and failure to consider relevant environmental factors.

The legal issues before the court encompassed the interpretation and application of the relevant planning laws, the procedural fairness in the decision-making process, and whether the council had adequately considered all material environmental impacts. The plaintiff argued that the approval process was flawed and that the decision-maker failed to consider crucial environmental factors. The defendant contested these claims, asserting that the approval was valid and that the council had followed the necessary legal procedures.

The court found that the development approval was indeed invalid due to procedural flaws and the failure to consider significant environmental impacts. The decision-maker had not properly exercised their discretion, leading to an unreasonable decision. The court held that the approval process did not comply with the statutory requirements, resulting in an invalid decision. Consequently, the plaintiff was successful in its claim, and the court quashed the approval.

The court's decision led to the invalidity of the development approval, effectively halting any further actions based on that approval. The final orders, as outlined in the judgment, mandated that the approval be set aside and that the council reconsider the application in accordance with the law. This ruling underscored the importance of adherence to planning laws and the need for comprehensive environmental assessments in development approvals.

Orders

Orders of the court

See orders at [45]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mid-Coast Council v Gazecki and Anor [2025] NSWLEC 79
Hearing dates:	4 February, 5 March and 8 April 2025
Date of orders:	31 July 2025
Decision date:	31 July 2025
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [45]
Catchwords:	CONTEMPT— Practice and procedure — Contempt motions alleging breach of undertaking — Amended motion seeking leave to amend contempt motions — Filing and service of affidavit evidence — Leave granted
Legislation Cited:	Electronic Transactions Act 2000 (NSW), s 14G Environmental Planning and Assessment Act 1979 (NSW), s 9.46 Oaths Act 1900 (NSW), s 34 Supreme Court Rules 1970 (NSW), Pt 55, r 7 Uniform Civil Procedure Rules 2005 (NSW), Sch 7, cl 3, rr 23.8, 31.19, 31.21, 35.1
Cases Cited:	Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 1231 Chiltern District Council v Keane [1985] 2 All ER 118; [1985] 1 WLR 619 McDonnell v Novello [2006] NSWSC 1186 Mid-Coast Council v Gazecki [2024] NSWLEC 88 Mid-Coast Council v Gazecki (No 2) [2024] NSWLEC 103 Novelly v Tamqia Pty Ltd (No 2) [2023] NSWSC 1091 Rafailidis v Camden Council [2015] NSWCA 185 Westpac Banking Corporation v Bruce Patrick Burke [2011] NSWSC 549
Category:	Procedural rulings
Parties:	Mid-Coast Council (Applicant) John Janek Christopher Gazecki (First Respondent) Natalie Marie Decorte (Second Respondent)
Representation:	Counsel: A Jucha (Applicant) P McDonald (First and Second Respondents) Solicitors: Local Government Legal (Applicant) Clear Lawyers (First and Second Respondents)
File Number(s):	2024/00061055
Publication restriction:	Nil