Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46

Land and Environment Court New South Wales

Medium Neutral Citation: Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46 Hearing dates: 15/3/2012 Decision date: 15 March 2012 Before: Biscoe J Decision: Declaration, injunction and substituted performance order as per [35] of judgment. Catchwords: CIVIL ENFORCEMENT:- failure to comply with Prevention Notice under s 96 Protection of the Environment Operations Act 1997 - substitute performance order appropriate. Legislation Cited: Land and Environment Court Act 1979 ss 20(2), 20(3), s 56A Protection of the Environment Operations Act 1997 ss 95, 96, 97, 98, 252, 289(1A), 292 Uniform Civil Procedure Rules 2005 r 40.8 Cases Cited: Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217 Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 Speedo Holdings B V v Evans (No 2) [2011] FCA 1227 Sumitomo Mitsui Banking Corporation v Sumitomo Mitsui Financial Group Pty Ltd (No 2) [2009] FCA 496 Wollongong City Council v Falamaki (No 3) [2009] NSWLEC 80 Category: Principal judgment Parties: Eurobodalla Shire Council (Applicant) Monica Netta Gerondal (Respondent) Representation: COUNSEL: Mr P Larkin SC (Applicant) Mrs Monica Gerondal (Respondent - in person) SOLICITORS: Sparke Helmore (Applicant) N/A (Respondent) File Number(s): 40661 of 2011

EX TEMPORE Judgment

OVERVIEW 1In these Class 4 civil enforcement proceedings, the applicant, Eurobodalla Shire Council, seeks a declaration that the respondent Mrs Monica Gerondal has infringed s 97 of the Protection of the Environment Operations Act 1997(POEO Act) by failing to comply with a Prevention Notice issued under s 96 of that Act issued by a Commissioner of this Court in respect of certain land known as Lot 1 DP 806104, also known as 19 Munjeroo Lane, Bingie NSW (the Bingie Land). Injunctive relief is sought to enforce the terms of the Prevention Notice. Given the history of defiance and default by Mrs Gerondal orders are also sought to authorise the Council to enter onto the Bingie Land and effect compliance with the Prevention Notice at Mrs Gerondal's cost. The Council also seeks costs of the proceedings. 2The original Prevention Notice was made by the Council on 13 July 2009 under s 96 of the POEO Act . After an agreed extension, the time for compliance with the order expired on 8 December 2009. Mrs Gerondal did not apply to stay the operation of the Prevention Notice. She took no steps to comply with it. In the absence of a stay, the Prevention Notice remained operative: s 289(1A) of the POEO Act . 3As was her right, Mrs Gerondal commenced a merits appeal to this Court. On 31 August 2010, a Commissioner confirmed and partly varied the Prevention Notice: Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217 . The notice, as varied, and as now in force, provides: Premises to which this notice applies: