The Hills Shire Council v Needham (No 2) [2018] NSWLEC 98

Land and Environment Court New South Wales

Medium Neutral Citation: The Hills Shire Council v Needham (No 2) [2018] NSWLEC 98 Decision date: 26 June 2018 Jurisdiction: Class 4 Before: Pain J Decision: See [182] Catchwords: ENVIRONMENT AND PLANNING – civil enforcement – prohibited activities – function centre in rural transition zone – commercial premises in rural transition zone – onus of proof on balance of probabilities that prohibited activities occurring in dwelling house satisfied by the council – no defence or evidence filed by respondent land owner – onus of proof that exempt development lies on respondent – onus not met – exercise of discretion to make a declaration and consequential orders restraining prohibited uses of land

COSTS – award of costs on indemnity basis warranted given unreasonable conduct of respondent in proceedings Legislation Cited: Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act ss 76B, 121H, 123, 124, Land Use Table, Evidence Act 1995 s 142 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.15, 2.113, 2.114, 2.117, 2.118 The Hills Shire Council Local Environmental Plan 2012 cl 2.8, Land Use Table, Schedule 2, Dictionary Uniform Civil Procedure Rules 2005 r 42 Cases Cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Styles v Wollondilly Shire Council (No 3) [2001] NSWLEC 133 The Hills Shire Council v Needham (No 1) [2018] NSWLEC 1 Westfield Management Ltd v Direct Factory Outlets Homebush Pty Ltd (No 4) [2005] NSWLEC 168 Texts Cited: Macquarie Dictionary Online (2017) Category: Principal judgment Parties: The Hills Shire Council (Applicant) Norma Bianca Maree Needham (Respondent) Representation: COUNSEL: M Wright SC (Applicant) M Fozzard (Respondent)