THOMAS v THE COUNCIL OF THE CITY OF BLUE MOUNTAINS [1997] NSWCA 314

THOMAS v THE COUNCIL OF THE CITY OF BLUE MOUNTAINS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE and BEAZLEY JJA, and DUNFORD AJA

20 February 1997, 20 February 1997

[1997] NSWCA 314

MIS-STATEMENT of issues by trial judge — true issues not addressed — meaning of "work" in s4 Environmental Planning & Assessment Act 1979

Cole JA This is an appeal from a decision of Bannon J delivered on 2 November 1994. The proceedings before his Honour were class 4 proceedings in the Land and Environment Court, in which the Blue Mountains City Council sought the following orders:

"1. The respondent be restrained from carrying out, either by himself or his servants or agents, any grading or earthworks in the property known as Lot 2 in Deposited Plan 628112, Corner Wilson Way and Mitchells Pass Road, Blaxland (the 'property') without securing development consent from the applicant.

2. The respondent remove all earth fill and other material graded or otherwise placed by the respondent along the boundary line between the property and the adjoining land owned by Robert Geoffrey Straton and Noelene Dawn Straton and known as Lot 5 in Deposited Plan 787012, Mitchells Pass Road, Blaxland ('the Straton property') in the period from April 1992 to date.

3. The respondent take all action and carry out all works that are required to restore to its level and condition in April 1992 that part of the property, that was the low point of the property in April 1992 (the 'low point of the property').

4. The respondent remove, from the part of the property adjacent to Mitchells Pass Road, the strip of raised earth put in place by the respondent using his grader, and which prevents the free flow of water to the low point of the property.

5. The respondent not carry out any works that would obstruct the free flow of water across the property to the low point of the property within the prior written consent of the applicant.!