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:
Solicitors:
A Jucha (Applicant)
P McDonald (First and Second Respondents)
Local Government Legal (Applicant)
Clear Lawyers (First and Second Respondents)
File Number(s): 2024/00061055 Publication restriction: Nil
JUDGMENT
Introduction and outcome
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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.
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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.
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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.
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The respondents oppose the relief sought…
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- AGLC
- Mid-Coast Council v Gazecki [2025] NSWLEC 79
- Case
- [2025] NSWLEC 79
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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