ALBURY CITY COUNCIL v. CAROLYN MUIR No. 40178 of 1996 [1997] NSWLEC 49 (30 April 1997) [1997] NSWLEC 4

Land and Environment Court of New South Wales

CITATION : ALBURY CITY COUNCIL v. CAROLYN MUIR No. 40178 of 1996 [1997] NSWLEC 49 (30 April 1997) [1997] NSWLEC 4 PARTIES : ALBURY CITY COUNCIL v. CAROLYN MUIR FILE NUMBER(S) : 40178 of 1996 CORAM: Bignold J :- Class 4 proceedings seeking to enforce by mandatory orders condition of development consent. KEY ISSUES: True meaning of condition requiring driveway to be designed to prevent persons entering motel premises from using the driveway of adjoining property. Condition did not impose obligation to construct any physical barrier. LEGISLATION CITED: CASES CITED: Hecar Investments No. 6 Pty Ltd v. Lake Macquarie Municipal Council (1984) 53LGRA 322 at 323 ; Gill v. Donald Humberstone & Co Ltd (1963) 1WLR 929. DATES OF HEARING: 30 April 1997 EX TEMPORE JUDGMENT DATE : 04/30/1997

Ms S. Duggan, Barrister LEGAL REPRESENTATIVES: First Respondent Ms J. Kelly, Barrister Second Respondent Ms J. Kelly, Barrister

JUDGMENT:

These are class 4 proceedings in which the Applicant Council seeks to enforce by mandatory order a condition of development consent granted by the Council on 27 June 1995 to development application No. 95-106 for the construction of a new entry from Wodonga Place to the Respondent's existing motel development known as "Paddle Steamer Lodge". The approved development which included the construction of a driveway, footpath crossing a feature archway and landscape has been carried out. The Applicant contends that in carrying out the development, the Respondents have not fulfilled the obligations imposed by the conditions of development consent. The nature and extent of the alleged non-fulfilment of these obligations is to be discerned from the Applicant's claim to specific mandatory order which is in the following terms: