Ross, F v Gunning Shire Council

[2003] NSWLEC 446

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Land and Environment Court

of New South Wales

CITATION:

Ross, F v Gunning Shire Council and Anor. [2003] NSWLEC 446

PARTIES:

APPLICANT:
Ross, F

RESPONDENTS:
Gunning Shire Council and Anor.

FILE NUMBER(S):

40272 of 2003

CORAM:

Bignold J

KEY ISSUES:

Development Consent - Injunctions and Declarations - Interlocutory Relief :- Ex parte

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

13/03/2003

EX TEMPORE
JUDGMENT DATE :

03/13/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Bridger, Solicitor

SOLICITORS
Hunt and Hunt

RESPONDENTS:
Mr A Bradbury, Solicitor

SOLICITORS
Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

13 March 2003

40272 of 2003 FRANCIS ROSS v GUNNING SHIRE COUNCIL & Anor

JUDGMENT

HIS HONOUR

1. This is an application for an interlocutory injunction restraining the second Respondent from acting upon a purported development consent in respect of Lot 2 Deposited Plan 83906 situate at Church Street Collector. The application is made ex-parte although I am satisfied by Exhibit 1 that facsimile transmissions of the intention of the Applicant to approach the Court today for urgent relief was given to the Solicitors for the developer, the second Respondent, and the Council, Gunning Shire, the first Respondent. Neither Respondent has appeared today and the Applicant has asked the Court for the grant of relief ex-parte.

2. The substantive proceedings which have been filed today and are made returnable on 21 March, Friday of next week, allege the invalidity of a development consent granted by the first Respondent to the second Respondent in respect of Lots 3 and 4, Deposited Plan 834906 and a purported development consent granted by the Council for the same development on Lot 2 of Deposited Plan 834906. Apparently Lots 2, 3 and 4, are owned by the second Respondent and Lot 4 is developed by a house occupied by the principal shareholder of the second Respondent company. The Applicant is the owner of Lot 1 in the same Deposited Plan whose Lot adjoins Lot 2 and is one Lot removed from Lots 3 and 4 to which the Council’s granted development consent on 16 September 2002 for the establishment of a transport depot was granted.

3. The application for interim relief has been limited to a claim restraining the second Respondent from acting upon the development consent in respect of Lot 2 because according to the affidavit evidence of Francis Ross the Applicant sworn 12 March, he became aware a few days ago that construction activity on Lot 2 had commenced with the laying of a large concrete slab on that Lot and not on Lots 3 and 4. The claim for interlocutory relief is based upon the proposition that the Council’s purported development consent granted in respect of Lot 2 in the Deposited Plan is of no effect because the Council had already determined the second Respondent’s development application by granting consent for the aforesaid development on Lots 3 and 4 and the Council records, annexed to the Applicant’s affidavit (access to which was obtained via freedom of information process) indicate no second development application was lodged in respect of Lot 2 and more recently indicates that a modification application pursuant to the Environmental Planning and Assessment Act, s 96 has been received by the Council to modify the consent granted in respect of Lots 3 and 4, so that the consent now relates to Lot 2. In support of his claim to interim relief, the Applicant is prepared to offer the usual undertaking as to damages, if required. In my judgment, it is appropriate to acquire the undertaking and it has been proffered by the Applicant’s Solicitor’s agent. In the circumstances, I am satisfied that a case has been made out for the grant of the interim injunction sought.

4. The proceedings are due to be called over for the first time on Friday of next week and if the second Respondent has a case for the discharge of the interlocutory injunction, no doubt it can take appropriate action. In the meanwhile however, I am satisfied that the case presented by the Applicant raises a serious question to be tried concerning the validity of the purported consent in respect of Lot 2 and the validity of the original consent granted in relation to Lots 3 and 4 although nothing concerning the validity of the original consent has been revealed in the evidence thus far adduced. However, significantly, the claim to interlocutory injunction is restricted to restraining the second Respondent from acting in reliance upon development consent in respect of Lot 2 and it is the claim that the purported consent in respect of Lot 2 that has been provisionally substantiated in the documentary evidence that’s been adduced today in the reading of the Applicant’s affidavit of 12 March.

5. In the circumstances, I accept the undertaking proffered and order on an interlocutory basis and until further order that the second Respondent, its agents and servants be restrained from carrying out any work on Lot 2 Deposited Plan 834906 in reliance upon the purported development consent granted in respect of that Lot by the Gunning Shire Council for the establishment of a transport depot. Such order is made on the giving by the Applicant of the usual undertaking as to damages.

6. The question of costs of these proceedings can be reserved and Exhibits 1 and 2 (if I may receive the Deposited Plan copy as Exhibit 2) may remain with the Court papers.