Australia, Sept. 1 -- New South Wales Land and Environment Court issued text of the following judgement on July 31:

1. By way of summons filed 16 February 2024, Mid-Coast Council ('Council') commenced Class 4 civil enforcement proceedings seeking declaratory and consequential relief against John Janek Christopher Gazecki and Natalie Marie Decorte ('respondents') relating to the carrying out of development comprising the construction of a new and/or enlarged dam ('Dam 1') on land at 1079 Upper Myall Road, Warranulla ('land') in 2022 and 2023.

2. Council sought declaratory relief, first, that the respondents had carried out works without development consent in contravention of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'); and second, that Ms Decorte ('second respondent') had breached the EPA Act by failing to comply with a development control order issued by Council on 15 December 2023 ('DCO') which contained a Restore Works Order ('RWO') relating to Dam 1.

3. Presently before the Court is a notice of motion filed by Council on 31 January 2025 and amended on 5 February 2025 ('amended motion'), which seeks, first, leave to amend two notices of motion filed by Council on 19 September 2024 ('contempt motions') which seek orders that each respondent be punished for contempt of this Court for breaching their written undertakings given to this Court on 15 April 2024 to complete certain "Interim Works" in relation to Dam 1 ('Undertaking'); and second, leave to rely upon certain affidavit evidence at the hearing of the contempt motions.

4. The respondents oppose the relief sought by Council and the hearing of the amended motion proceeded on 4 February, 5 March and 8 April 2025.

5. For the reasons that follow, I find that Council is entitled to leave to amend each of the contempt motions and to rely upon the identified affidavits, and that costs of the amended motion be reserved.

Evidence

6. Council read three affidavits of its solicitor, Mark Andrew Cottom, two affirmed 31 January 2025 and one affirmed 5 February 2025; the affidavit of Charlotte Rose Petrie, a solicitor employed by Council's solicitor, affirmed 5 February 2025; and the affidavit of Frank Hoare, a licensed commercial agent, sworn 8 October 2024. A transcript of the hearing on 13, 16 and 19 August 2024 before Pain J of a notice of motion filed by the respondents in these proceedings became Exhibit A.

Background

7. The respondents occupy land owned by the second respondent and have carried out works comprising the construction of three dams on the land. On 15 December 2023, Council issued the DCO to the second respondent along with restore works orders in respect of the three dams. The present proceedings concern Dam 1 (one of those dams) and the related RWO.

8. The DCO for Dam 1 requires the second respondent to submit to Council a landform restoration plan prepared by a suitably qualified person which must provide for the demolition of the dam and reinstatement of the landform that existed within the disturbance area prior to the dam's excavation, and includes a provision that the plan "must consider and not inhibit the future development of the registered 10 metre easement (right of carriage) which has been impacted by the unlawful earthworks".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19859d1ec8545faf85f156be)

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