Council of the City of Shoalhaven v Elachi [2015] NSWLEC 85

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Shoalhaven v Elachi [2015] NSWLEC 85 Hearing dates: 19 May 2015 Date of orders: 27 May 2015 Decision date: 27 May 2015 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Declaration that the respondent has breached, and has threatened to continue to breach, s 76A(1) of the Environmental Planning and Assessment Act 1979 (the Act) by carrying out development on the Property, being clearing of trees and other vegetation, contrary to cl 5.9 of the Shoalhaven Local Environmental Plan 2014 (LEP), without development consent, in circumstances where prior consent is and was required. (2) Order that the respondent, his servants, agents and invitees, be restrained from clearing trees or other vegetation on any part of the Property otherwise than with prior development consent under the Act, if such consent is required by cl 5.9 of the LEP. (3) If the applicant presses for a rectification order, then within 10 days the parties are to (a) submit a proposed consent rectification order to the Court with a request that it be made by consent, or (b) arrange for the matter to be listed as soon as possible for directions in relation to the rectification order issue. (4) The respondent is to pay the applicant's costs. Catchwords: CIVIL ENFORCEMENT – whether clearing of trees and other vegetation in an environment protection zone for construction of a permanent fence around the boundary of a three lot property as well as around the boundary of each lot is unlawful – whether prohibited under local environmental plan which excludes exemption for clearing for a permanent boundary fence in relation to certain land including the subject land – development control plan provides for exemption for clearing for a permanent boundary fence in relation to certain land including the subject land – whether development control plan to that extent inconsistent and incompatible with local environmental plan and of no effect – if not inconsistent and incompatible, whether exempt development extends to clearing for fence around boundary of individual lots as distinct from boundary of whole property. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4, 26, 74C, 76, 76A(1) Native Vegetation Act 2003 ss 3, 5, 7, 11, 18, 21, 22 Native Vegetation Regulation 2013 cll 3, 25, 29, 30, 31 Shoalhaven Local Environmental Plan 2014 cll 2.3, 5.9, 5.9AA Shoalhaven Development Control Plan 2014 Chapter 1: Introduction, Chapter G4: Removal and Amenity of Trees State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.15, 1.16, 2.35 Cases Cited: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 Perilya Broken Hill Limited v Valuer-General (No 6) [2015] NSWLEC 43 Texts Cited: New Shorter Oxford English Dictionary Australian Oxford Dictionary Macquarie Dictionary Category: Principal judgment Parties: The Council of the City of Shoalhaven (Applicant) Charbel Elachi (Respondent) Representation: COUNSEL: I Hemmings SC and S Nash (Applicant) S Duggan SC and J Reid (Respondent)