Wilkie v Blacktown City Council & Ors

(2002) 121 LGERA 444; [2002] NSWCA 284

NSW Court of Appeal

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Interrogate

Catchwords

1. Environmental Law
2. › Planning and development
3. › Enforcement
4. › Remedial orders under s 124
5. › Whether rectification order may be directed to person who did not breach the Act
6. › Whether 'permitted or suffered' breach sufficient basis
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1), 122, 123, 124
1. Environmental Law
2. › Planning and development
3. › Breach of planning instrument
4. › Meaning of 'carry out development'
5. › Whether sub-lessor who sub-leased for lawful purpose breached s 76A(1)
6. › Environmental Planning and Assessment Act 1979 (NSW), s 76A(1)
1. Practice and Procedure
2. › Standing
3. › Cross-claim for contribution
4. › Whether party who succeeds on appeal retains standing to challenge dismissal of claim against co-respondent

Quick Take

Section 124 of the Environmental Planning and Assessment Act 1979 (NSW) does not authorise the Land and Environment Court to make rectification orders against a person who has not herself breached the Act, even where that person 'permitted or suffered' the breach. A sub-lessor who sub-leased land for a lawful purpose and was not a participant in the unlawful development cannot be made subject to a rectification order. The decision leaves open the position of owners and persons with general law obligations to rectify (e.g. nuisance).