Council of the City of Botany Bay v Marcone Pereira Pty Ltd [2011] NSWLEC 114

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Botany Bay v Marcone Pereira Pty Ltd [2011] NSWLEC 114 Hearing dates: 30 June 2011 Decision date: 30 June 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Proceedings adjourned by consent Catchwords: PRACTICE AND PROCEDURE: - whether civil enforcement proceedings for breach of the Environmental Planning and Assessment Act 1979 by undertaking development without development consent should be adjourned to enable development application to be lodged. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A, 124(3) Category: Procedural and other rulings Parties: Council of the City of Botany Bay (Applicant) Marcone Pereira Pty Ltd (Respondent) Representation: Counsel: Mr S Shneider - Solicitor (Applicant) Mr P Lonergan - Agent (Respondent) Solicitors: Houston Dearn O'Connor (Applicant) File Number(s): 40406 of 2011

EX TEMPORE Judgment 1Before this matter was called on for hearing, the parties applied for orders by consent that the matter be adjourned for five weeks. 2These are civil enforcement proceedings in which it is alleged that the respondent is in breach of s 76A of the Environmental Planning and Assessment Act 1979 in that had undertaken development without first having obtaining development consent. 3I am informed that a development application has been lodged which would regularise the development and that there is a strong likelihood that the matter will settle. Adjournment of the proceedings by consent in such circumstances is encouraged by s 124(3) of the Environmental Planning and Assessment Act , which provides: (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. 4The orders of the Court by consent are as follows: (1)The matter is adjourned for directions on Friday 5 August 2011 before the List Judge. (2)The parties have liberty to restore the matter to the list on three days notice to the registry and the other party. (3)The parties are to notify the court promptly should the matter settle before 5 August 2011.