Armidale Dumaresq Council v Schmitz [2011] NSWLEC 236

Land and Environment Court New South Wales

Medium Neutral Citation: Armidale Dumaresq Council v Schmitz [2011] NSWLEC 236 Decision date: 30 November 2011 Jurisdiction: Class 4 Before: Pepper J Decision: 1.the Court notes the following undertakings given by the respondent: (i) with the exception of the works described below in paragraph 2, Ms Schmitz, including by her servants and agents, undertakes not to carry out any further building work at 188 Markham Street, Armidale, being Lot A DP 450294 ("the premises"), until 16 December 2011; and (ii) undertakes to permit officers of the applicant to enter the property at 188 Markham Street for the purpose of inspecting the structure the subject of the summons at the rear of the premises in order to ascertain whether it has filled with water and in order to determine its structural integrity; and 2.the Court orders that by 5.00pm on 2 December 2011 the respondent is to construct a 300mm soil bund along the common boundary between 188 Markham Street, Armidale and 176 and 174 Kentucky Street, Armidale, commencing at the eastern end of the structure the subject of the summons at the rear of the premises, to carry stormwater into Markham Street, or such other works as are agreed to by the parties to prevent stormwater from 188 Markham Street entering neighbouring properties; 3.the Court orders that the costs of the motion be reserved; 4.the Court orders that the matter is stood over to 2.00pm on 16 December 2011 before the Duty Judge for mention; 5.the Court orders that when the matter is listed before the Duty Judge on 16 December 2011 the matter is to be heard by way of telephone directions hearing; and 6.liberty to restore on 24 hours notice. Catchwords: INJUNCTIONS: whether injunctive relief should be granted that the respondent undertake works to stop stormwater runoff escaping from the property - whether there is a serious question to be tried - whether the balance of convenience favours the granting of the injunction - injunctive relief granted Legislation Cited: Environmental Planning and Assessment Act 1979, s 121B Local Government Act 1993, s 68 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 Category: Interlocutory applications Parties: Armidale Dumaresq Council (Applicant) Petra Schmitz (Respondent) Representation: Mr David Clifton (Solicitor) (Applicant) Ms Petra Schmitz (In person) (Respondent) Liston & Clifton Lawyers and Conveyancers (Applicant) Ms Petra Schmitz (In person) (Respondent) File Number(s): 41126 of 2011