Wilkie v Blacktown City Council

The parties to this matter were Wilkie and Blacktown City Council. The dispute concerned the Council's attempt to obtain a rectification order under section 124 of the *Environment Planning and Assessment Act 1979* (NSW) against Wilkie, who was alleged to have permitted or suffered a breach of a planning instrument. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether section 124 of the *Environment Planning and Assessment Act 1979* authorised a rectification order to be directed against a person who was not the direct party to the breach of the planning instrument, and whether the terms "permitted" or "suffered" provided a sufficient legal basis for such an order. Furthermore, the Court considered whether the power granted by section 124 was unlimited once a breach of the planning instrument had been established.

The Court of Appeal determined that section 124 of the *Environment Planning and Assessment Act 1979* did not empower a local council to seek a rectification order against a person who had merely permitted or suffered a breach of a planning instrument, rather than being the direct perpetrator of the breach. The Court reasoned that the language of the section required a more direct involvement or responsibility for the breach. The Court found that the terms "permitted" and "suffered" were not sufficiently broad to encompass the situation where a person had not actively caused or knowingly allowed the breach. Consequently, the Court held that the power under section 124 was not unlimited once a breach was established, but was constrained by the nature of the party against whom the order was sought. The appeal was allowed.