Palerang Council v Banfield

Land and Environment Court

New South Wales

Medium Neutral Citation:

Palerang Council v Banfield [2012] NSWLEC 85

Hearing dates:

24/04/2012

Decision date:

24 April 2012

Jurisdiction:

Class 4

Before:

Lloyd AJ

Decision:

1.The notice of motion for a stay brought by Ms Banfield is dismissed.

2.Ms Banfield, the applicant on the motion for stay, is to pay the costs of that motion.

3.The respondent to the motion for contempt, Ms Banfield, is to file and serve any evidence on which she intends to rely on or before 15 May 2012.

4.The applicant, the Council, is to file and serve any evidence in reply on or before 22 May 2012.

5.The matter is listed on 29 May 2012 before a Judge for hearing of the motion for contempt.

Catchwords:

PROCEDURE - adjournment - discretion - relevance of financial considerations - inadequacy of medical evidence

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 121B

Cases Cited:

Jeray v Blue Mountains City Council [2011] NSWLEC 218
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Texts Cited:

Nil

Category:

Interlocutory applications

Parties:

Palerang Council (applicant)
Wendy Banfield (respondent)

Representation:

A Pearman (applicant)
Williams Love & Nicol (applicant)
Wendy Banfield (respondent) in person

File Number(s):

40357 of 2011

Publication restriction:

Nil

Ex tempore Judgment

1. On 17 July 2011 the Court made the following orders by consent:

1 The Respondent by herself, her servants, other agents and assigns be restrained from using the shed presently situation at Lot 1 DP1090531 Hazeldell Road, Mount Fairy ("the shed") for the purpose of a dwelling unless and until development consent has been granted for that purpose.

2 The Respondent demolish and remove the shed from the said Lot 1 DP1090531.

3 The Order in paragraph 1 be suspended until 14 September 2011.

4 The Order in paragraph 2 be suspended until 14 December 2011 and be discharged if development consent for the future use of the shed as a storage shed or stable has been obtained on or before that date.

5 The Respondent pay the Applicant's costs.

6 The Order in paragraph 5 be discharged if the Respondent has complied in full with the Order in paragraph 1 on or before 14 September 2011 and the Order in paragraph 2 on or before 14 December 2011.

1. On 12 March 2012 the Council filed a notice of motion seeking an order that the respondent, Wendy Banfield, be punished for contempt of order number 2 of the Court's orders.

1. It can be seen that order 2 required the respondent to demolish and remove the shed, but that order was suspended until 14 December 2011; and the orders allowed for discharge of the order if a development consent for the future use of the shed as a storage shed or stable was obtained prior to that date. The evidence shows that order 2 has not been complied with and the shed is still being occupied by the respondent.

1. Ms Banfield has now filed by notice of motion an…