Queanbeyan-Palerang Regional Council v Walker

Land and Environment Court

New South Wales

Medium Neutral Citation:

Queanbeyan-Palerang Regional Council v Walker [2023] NSWLEC 146

Hearing dates:

15 November 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraph 43

Catchwords:

CIVIL ENFORCEMENT – s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) – where respondents carried out earthworks, erection of a building and driveway works without consent – orders made requiring demolition of works and restoration of land – s 23 of the Land and Environment Court Act 1979 (NSW) – r 40.8 of the Uniform Civil Procedure Rules – orders made permitting the Council to carry out works if respondents fail to comply with orders

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW)

Environmental Planning and Assessment Act 1979 (NSW)

Land and Environment Court Act 1979 (NSW)

Protection of the Environment Operations Act 1997 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Walker v Queanbeyan-Palerang Regional Council [2023] NSWLEC 1032

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Category:

Principal judgment

Parties:

Queanbeyan-Palerang Regional Council (Applicant)
Jarron Walker (First Respondent)
Leah Walker (Second Respondent)

Representation:

Counsel:
S Berveling (Applicant)
No appearance (Respondents)

Solicitors:
Bal Lawyers (Applicant)
No appearance (Respondents)

File Number(s):

2023/00054792

Publication restriction:

No

JUDGMENT

Nature of proceedings

1. Queanbeyan-Palerang Regional Council (the Council or the Applicant) by way of Summons filed 17 February 2023 commenced civil enforcement proceedings under s 9.45 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) against Jarron Walker (the First Respondent) and Leah Walker (the Second Respondent) (collectively the Respondents). On 18 September 2023, leave was granted for the Council to file an Amended Summons.

2. From on or about 10 July 2020, the Respondents have been the registered proprietors of the land comprising Lot 30 DP 747879 known as 159 Fernleigh Drive, Googong NSW (the Land) as joint tenants. The Respondents have not filed an appearance in the proceedings.

3. The Applicant seeks declarations and orders relating to alleged an allegation that the Respondents carried out development on the Land that was permissible only with development consent, without such consent having been obtained, contrary to s 4.2 of the EP&A Act.

4. The Applicant also sought declarations and orders in relation to breaches of s 9.37 of the EP&A Act arising from the Respondents’ failure to comply with four Development Control Orders (DCOs) issued by the Council. However, at the hearing the Council did not press prayers 1 and 2 of the Amended Summons in relation to the DCOs.

Procedural history

5. In circumstances where there was no appearance by the Respondents, it is appropriate to outline the evidence relating to the service of documents on the Respondents and the decision to proceed to hear the matter ex parte pursuant to r 29.7(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

6. On five occasions between 22 February 2023 and 10…