Hornsby Shire Council v Footwear Trading Company Pty Limited and Peter Loccisano and Footwear Trading Group Pty Ltd [2008] NSWLEC 286

Land and Environment Court of New South Wales

CITATION : Hornsby Shire Council v Footwear Trading Company Pty Limited and Peter Loccisano and Footwear Trading Group Pty Ltd [2008] NSWLEC 286

APPLICANT Hornsby Shire Council

FIRST RESPONDENT Footwear Trading Company Pty Limited PARTIES : SECOND RESPONDENT Peter Loccisano

THIRD RESPONDENT Footwear Trading Group Pty Ltd

FILE NUMBER(S) : 40047 of 2008

CORAM: Preston CJ

KEY ISSUES: Civil Enforcement :- carrying out development without consent - advertisements on public roads - advertising banners attached to trucks parked on road verge and electronic advertising sign placed on road nature strip - declaration and injunction issued

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A

DATES OF HEARING: 30 September 2008

EX TEMPORE JUDGMENT DATE : 30 September 2008

APPLICANT Mr M Staunton (barrister) SOLICITORS LEGAL REPRESENTATIVES: Pike Pike & Fenwick

FIRST, SECOND, and THIRD RESPONDENTS No appearance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

30 SEPTEMBER 2008

40047 OF 2008

HORNSBY SHIRE COUNCIL V FOOTWEAR TRADING COMPANY PTY LIMITED and PETER LOCCISANO and FOOTWEAR TRADING GROUP PTY LTD

JUDGMENT

1 HIS HONOUR: Hornsby Shire Council brings proceedings to remedy and restrain breaches of the Environmental Planning and Assessment Act 1979 involving the carrying out of development for the purpose of advertisements on two roads, New Line Road and Old Northern Road, in Hornsby local government area. The advertisements consist of banners attached to trucks parked on the verge of the roads advertising shoes and clothing for sale at nearby premises, being Unit 11/12, 286-288 New Line Road, Dural, as well as an electronic advertising sign placed on the nature strip of New Line Road outside the premises. The advertisements have been displayed from at least 8 March 2007 to date. 2 The Council brings the proceedings against three respondents, each of whom, it appeared to the Council, might have been involved in some way with the carrying out of the development for the purpose of advertisements. 3 The proceedings came on for hearing before me on 14 July 2008. There was no appearance for any of the respondents. The Council proved service on each of the respondents of the originating process, the evidence filed in the proceedings and the notification of listing of the proceedings for hearing. The proceedings were nevertheless adjourned part heard to a date to be fixed for the resumption of the hearing. The date fixed for the resumption of the hearing was today, 30 September 2008. The Council has again proved service on each of the respondents of further evidence filed in the proceedings as well as the notification of listing of the resumption of the hearing. 4 This morning when the matter came on for the resumption of the hearing, again none of the respondents appeared. I stood the matter down and inquiries were made of the respondents by the officers of the Council. In particular, an officer of the Council telephoned the second respondent, Mr Peter Loccisano, who is also the sole director and secretary of the first respondent, Footwear Trading Company Pty Limited, and advised Mr Loccisano, yet again, of the hearing today. Mr Loccisano advised that he would not be attending the hearing and did not wish for the Council to contact his solicitors. 5 In the circumstances, each of the respondents have been given repeated notice of the hearings of these proceedings and the evidence to be adduced but have elected not to appear. The Court should proceed ex parte to hear and determine the proceedings against each of the respondents. 6 The Council's case is that the three respondents, or any of them, are in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 in carrying out development without consent. Section 76A(1) provides that: "If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and