Sutherland Shire Council v Deeban Walk Pty Limited

[2007] NSWLEC 736

Land and Environment Court

of New South Wales

CITATION:	Sutherland Shire Council v Deeban Walk Pty Limited [2007] NSWLEC 736
PARTIES:	APPLICANT Sutherland Shire Council RESPONDENT Deeban Walk Pty Limited
FILE NUMBER(S):	40735 of 2007
CORAM:	Sheahan J
KEY ISSUES:	Development Consent :- failure to comply with conditions of development consent - s94 contributions
DATES OF HEARING:	6 November 2007
EX TEMPORE JUDGMENT DATE:	6 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Reilly (Solicitor) SOLICITOR Home Wilkinson Lowry RESPONDENT No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

6 November 2007

40735 of 2007 Sutherland Shire Council v Deeban Walk Pty Limited

EXTEMPORE JUDGMENT

1 His Honour: These Class 4 proceedings were commenced by Council to enforce the conditions of a Development Consent (as modified on 14 August 2002) granted in favour of the Respondent Company in response to DA011595.

2 The Respondent was required by various conditions of that consent to pay moneys and has failed to honour those conditions in full.

3 The Council relies on an affidavit of service regarding its Class 4 application and the sworn evidence of its employed solicitor Adam Stephen Markham in affidavits dated 5 October and 2 November 2007. All three affidavits have been read and relied upon in the proceedings today. Council also relies on the terms of its contributions plan, exhibited to the earlier Markham affidavit and received into evidence today as Exhibit S1.

4 Before these proceedings were commenced certain acknowledgements were made and certain undertakings were given by the Respondent Company, but these were not honoured.

5 The evidence indicates:

a. that the Respondent Company is the relevant land owner.

b. that these moneys have been outstanding for some years.

c. that an agreement was reached for their payment by instalments.

d. that only one payment was made pursuant to that agreement.

e. that that payment was made later than agreed.

f. that the Respondent Company was served with the Class 4 application, and

g. that Council is entitled to charge an indexation factor on unpaid contributions.

6 My associate was told on the telephone on 2 November 2007 by a person believed to be Mr Delmonte of the Respondent Company that his company would be able to “pay the $100,000 within about two weeks”. My associate urged that representative of the company to ensure the company was represented here today. There has been no appearance by the Respondent and no response to a call outside the court.

7 The court is always hesitant and careful in dealing with such serious matters in the absence of the relevant party but I am satisfied that the Council is entitled to the orders sought in clauses 1-4 of its Class 4 application, namely Declarations 1 and 3, and orders 2 and 4.

8 As there are no other orders (except as to costs) sought, I order the Respondent to pay the Applicant’s costs and I order that Exhibit S1 remain with the court papers.

Orders

9 The Court makes the following declarations:

1. A declaration that the Respondent has failed to comply with condition 36 of development consent IDA011595 first granted to the Respondent on 29 August 2001, in breach of the Environmental Planning and Assessment Act 1979.

2. A declaration that the Respondent has failed to comply with condition 37 of development consent IDA011595 first granted to the Respondent on 29 August 2001, in breach of the Environmental Planning and Assessment Act 1979.

10 The Court makes the following orders:

1. An order that the Respondent pay to the Applicant the contribution required pursuant to condition 36, together with an additional amount for indexation from the date the development consent was granted to the date of payment, as set out in condition 36, within 28 days of the date of the Court’s order, or such other or further time as the Court allows.

2. An order that the Respondent pay to the Applicant the contribution required pursuant to condition 37, together with an additional amount for indexation from the date the development consent was granted to the date of payment as set out in condition 37, within 28 days of the Court’s order, or such other or further time as the Court sees fit.

3. The Respondent is ordered to pay the Applicant’s costs.

4. The Exhibit is retained.