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[2026] NSWCA 181
mixed. Leave was granted to adduce the evidence identified in the appellants' motion filed on 11 May 2026. The appeal was upheld in part. Orders 11, 12, 13 and 17 made by Robson J were set aside. The matter...
The Court largely agreed with the primary judge about what the three earlier consents allowed. The 1994 consent covered a dwelling and a shed for earthmoving equipment, not an earthmoving operation across the whole property. The 1997 consent confined the sand and soil yard to the plan and facilities approved for it. Although the Court admitted extra plans relating to the 2000 application, it found that the application was for a retail plant nursery, not an earthmoving business. The appeal succeeded on a different point: three injunctions were too broad and unclear because they prohibited breach of the consents without specifying the conduct to be restrained. Those orders were set aside for rephrasing, and the costs below were sent back for reconsideration. The appellants remained responsible for 80% of the Council's appeal costs.
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The dispute concerned development and use of land at 28 Wonga Road, Picton. Wollondilly Shire Council alleged that James Godfrey and two companies, Picton Sand and Soil Pty Ltd and ECC Earth Civil Contracting Pty Ltd, had carried out development beyond what was permitted by development consents. The land was 5.4 hectares. The relevant consents were granted in 1994 for a dwelling and shed for storing earthmoving equipment, in 1997 for a wholesale sand and soil yard, and in 2000 for a retail plant nursery. Godfrey also relied on a 2007 consent, which the primary judge declared had lapsed ([41]-[44]).
The Council's case was that various buildings, structures, works and uses were unauthorised or otherwise inconsistent with the consents. The primary judge found in the Council's favour on most substantive issues. The judge made declarations about the consents and alleged breaches, ordered removal of identified structures and materials, and made three further injunctions restraining use of the land “in breach of” each of the 1994, 1997 and 2000 consents ([44]-[46]).
On appeal, Godfrey challenged the construction of each of the three consents, the injunction concerning the 1997 consent, and the costs decision. Godfrey also sought leave to rely on two plans and related correspondence that had not been before the primary judge. The Court granted leave to adduce that evidence, but concluded that it did not establish permission for an earthmoving business under the 2000 consent ([88]-[108]).
The appeal succeeded only in part. The Court upheld the primary judge's construction of the consents, but set aside injunctions 11, 12 and 13 because of their breadth and lack of precision. It also set aside the costs order below so the primary judge could reconsider costs in light of the changed orders. The appellants were ordered to pay 80% of the Council's appeal costs ([111]-[117]).
The Court treated construction of each consent as a question about what development was applied for and what the consent and approved materials authorised. It did not treat a reference to a wider business or activity as enough, by itself, to establish consent for all uses of the land associated with that business.
For the 1994 consent, the application described “Dwelling & shed for storage of earthmoving equipment”. The plans showed the proposed dwelling and shed. The form also listed earthmoving equipment, trucks and oil drums as goods to be stored on site. But the Court held that this answer did not identify a separate area outside the buildings for that storage. Section 91(4), as it then stood, authorised use of a building for its specified purpose when consent was granted for the building. It did not extend the authorised use to other parts of the land. The consent therefore authorised the shed to be used for earthmoving equipment, not the whole property as an earthmoving establishment ([55]-[61]).
The 1997 consent was similarly read with its approved plan. That plan identified the sand and soil bays, their dimensions and locations, as well as access, parking and loading arrangements. The number and size of the bays necessarily constrained how much material could be stored there. The primary judge's finding that the activities went beyond the approved plan and conditions was based on comparing the approved material with what was occurring on the land, rather than treating the application’s stated tonnage or estimated development cost as a binding numerical cap ([64]-[76]). The appellants therefore did not establish a misconstruction of the 1997 consent.
The 2000 consent raised a question about two plans discovered after the primary judgment. The plans had been sent to the Council in response to a request for additional information, including details of current uses on the site and how those uses related to the proposed nursery. One plan was stamped as a plan referred to in the consent; the other was not stamped as approved. The Court nevertheless admitted both plans and the related correspondence because they were relevant to construction and had not been known to either party at trial ([88]-[99]).
Their admission did not change the result. The application described the proposed development as “Retail Landscape & Nursery Supplies”, and the consent authorised a “Retail Plant Nursery”. The Council's request for information asked about existing improvements and current uses, including an earthmoving business. The markings on the plans identified that existing activity to answer that request. They were not an application for consent to use the land for an earthmoving business. The Court also noted that consent is for development to be carried out in the future, not development already undertaken ([101]-[107]).
The injunction issue was different. Kirk JA explained that s 4.2 prohibits development requiring consent unless consent has been obtained, remains in force, and the development is carried out in accordance with the consent and the environmental planning instrument ([8]-[12]). In his analysis, it is more precise to say that development outside the scope of consent is prohibited by s 4.2 than to say that the consent itself has been breached. A consent marks the boundary of the statutory relaxation of the prohibition ([10]-[15]).
For civil enforcement, s 9.46 permits orders to remedy or restrain a breach of the Act. The Court applied principles requiring an injunction to be justified by the particular case, connected to the conduct proved, and expressed clearly and unambiguously. Orders 11-13 simply restrained use of the land “in breach of” the consents. They did not specify which activities were enjoined. The Court considered that this was effectively a general order to obey the law, potentially exposing the appellants to contempt consequences for conduct not identified in the Council's case ([21]-[40], [81]-[85]).
Preston CJ of LEC also explained that the activities on the land were “intermixed” between the consents and that the primary judge was better placed to identify the particular conduct to be restrained. The matter was therefore remitted for rephrasing rather than for the appellate court itself to draft replacement injunctions ([111]-[115]).
The judgment applied existing statutory provisions and authorities; it did not purport to replace the statutory framework. Section 4.2 addresses development that may not be carried out without consent, while s 4.3 addresses development prohibited by an environmental planning instrument. Section 9.46 gives the Land and Environment Court power to make orders to remedy or restrain a breach, including restraining a use or requiring removal or reinstatement in the circumstances specified by the section ([7]-[8], [16]).
The judgment clarifies the distinction, in Kirk JA's analysis, between breaching a consent in ordinary speech and contravening s 4.2. A development consent does not create a free-standing entitlement to use land for any related purpose. It relaxes a prohibition to the extent of the development authorised, including its conditions. If development falls outside that authorised scope where consent is required, the statutory problem is that the activity is not covered by the relaxation ([10]-[15]).
Kirk JA left open whether, for Div 9.5 civil enforcement, conduct may also be characterised as breach of a consent condition because s 9.44(b) includes a consent and its conditions within the extended meaning of “the Act”. He expressly did not decide whether that would mean one or two breaches in a particular case ([17]-[19]). That qualification matters: the Court did not resolve every possible relationship between consent conditions and civil enforcement.
The injunction reasoning reinforces requirements already discussed in authorities cited by the Court. An injunction must bear upon the case alleged and proved, identify the conduct restrained, and avoid merely reproducing a statutory prohibition. The Court applied those requirements to orders 11-13 and set them aside. It did not hold that future-looking injunctions under s 9.46 are unavailable whenever there is no separate finding that a further breach is likely. Kirk JA noted the breadth of the statutory discretion and authorities in which a past breach had been treated as sufficient to satisfy the statutory condition, while emphasising that the court must still decide whether future-looking relief is warranted ([27]-[29]).
On the construction of consents, the decision applies the proposition that the consent cannot be wider than the application to which it relates, drawing on Sericott and Hunter Industrial Rental Equipment ([102]). It also relies on Ku-ring-gai Council v Buyozo for the point that consent is for development to be carried out in the future, not development already carried out ([107]). The judgment's practical effect is to apply those principles to the documentary record in this case, not to announce a new rule about every consent application.
At [12], Kirk JA says that development beyond what a consent authorises contravenes s 4.2 because it is development not authorised by consent where consent is required. In plain English, a consent does not itself make every related activity lawful. The activity must fall within the scope of the consent and satisfy the statutory requirements.
At [57], Preston CJ of LEC states that the 1994 consent authorised the erection of the dwelling and shed, and their use for the stated purposes. In plain English, the Court did not read the consent as covering the whole site merely because the application mentioned equipment and vehicles to be stored there.
At [72], the Court states that the 1997 consent limited the yard to the locations shown on the approved plan. In plain English, a consent plan may matter not only as a general illustration but as a specification of where approved facilities are to be located and how they are arranged.
At [104]-[106], the Court explains that the 2000 application was for a retail plant nursery, and that the earthmoving-business annotations recorded an existing use in response to the Council's information request. In plain English, information supplied during an assessment does not necessarily turn into a request for consent to every activity it describes.
At [30], Kirk JA adopts the requirement that injunctions be clear and unambiguous. At [33], he refers to the need for an injunction to identify the conduct enjoined rather than merely repeat a statute. In plain English, a person subject to an injunction should be able to tell from its terms what conduct is prohibited, without having to guess and risk contempt proceedings.
At [85], Preston CJ of LEC concludes that the injunction concerning the 1997 consent went beyond the case alleged and proved. In plain English, findings of past non-compliance do not automatically justify a broad order covering every possible future breach of every condition.
The decision is relevant where a dispute turns on the boundary between development described in an application and development later carried out on the land. It illustrates the importance of comparing the application, consent, approved plans and conditions, rather than relying on a broad description of a business or the applicant's understanding of the approval. The 1994 and 1997 analyses show how plans and conditions can confine location, layout and facilities ([57]-[76]).
The 2000 consent analysis is relevant where plans or other information submitted during assessment identify existing uses alongside a proposed development. The Court distinguished information describing a current use and its relationship to a proposal from a request for consent to continue or expand that use. The context of the Council's request and the development actually described in the application were important ([90]-[107]).
The injunction analysis is relevant where a court is asked to restrain future conduct after finding past planning breaches. A broad order stating that a party must not act “in breach of” a consent may be vulnerable if it does not identify the specific conduct proved and restrained. The judgment's concern was heightened because breach of an injunction can have contempt consequences ([25]-[40], [81]-[85]).
These are illustrations of issues arising on the facts of this case, not a statement that every consent, plan or enforcement order will be construed in the same way. The Court emphasised that injunctions depend on the particular evidence and the way activities relate to each consent ([20]-[21], [114]-[115]).
The supplied judgment does not identify any later court decision considering or applying Godfrey v Wollondilly Shire Council. It would therefore be unsupported to say how later courts have treated this decision.
The judgment itself discusses earlier authorities. For injunctions, it refers to Commodore Business Machines, ICI Australia Operations, BMW Australia, Dataline.Net.Au, Hogan v Hinch and Lake Macquarie City Council. Those authorities are used to explain the requirements that injunctions be justified by the facts, be clear and precise, and not simply reproduce statutory prohibitions ([24]-[33]). For consent construction, it cites Sericott and Hunter Industrial Rental Equipment on the relationship between the application and the consent, and Ku-ring-gai Council v Buyozo on consent for future development ([102], [107]).
The decision also refers to Woolworths Ltd v Campbells Cash and Carry and Woolworths Limited v The Warehouse Group, including the appellate affirmation in Warehouse Group (Australia) Pty Ltd v Woolworths Ltd, in discussing the statutory discretion to grant future-looking relief under s 9.46 ([28]). Those cases are authorities considered by this Court, not later treatment of the present judgment.
The judgment leaves open the precise characterisation of consent-condition non-compliance for civil enforcement under Div 9.5. Kirk JA considered it arguable that, because s 9.44(b) includes consents and conditions in the extended definition of the Act, some conduct could be characterised as breaching both s 4.2 and a consent condition. The Court did not decide whether that would amount to one breach or two ([17]-[19]).
The judgment also does not prescribe a single test for when past conduct warrants future-looking relief. Kirk JA noted authorities treating a past breach as sufficient to satisfy the statutory condition for relief, but stated that a court must still assess whether future restraint is warranted in the circumstances. The required evaluation remains fact-sensitive ([27]-[29]).
The exact replacement terms for orders 11-13 were left to the primary judge. The appellate court considered that the activities were intertwined and that the primary judge had a better position from which to identify specific acts, structures, works and land relevant to each consent ([114]-[115]). The judgment therefore establishes why the original orders were inadequate but does not itself specify the final injunction wording.
Finally, the judgment does not establish that every plan or annotation submitted during assessment has a particular legal effect. Its conclusion about the 2000 plans depended on the application being for a retail plant nursery and on the Council having requested information about existing site uses and how they related to that proposal ([103]-[106]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Godfrey v Wollondilly Shire Council [2026] NSWCA 181
Hearing dates: 14 July 2026
Date of orders: 7 September 2026
Decision date: 07 September 2026
Before: Leeming JA at [1]
Kirk JA at [2]
Preston CJ of LEC at [41]
Decision: (1) Grant leave to adduce the evidence identified in the appellants’ motion filed on 11 May 2026.
(2) The appeal is upheld in part.
(3) Orders 11, 12, 13 and 17 of Robson J made on 27 February 2026 and amended on 2 April 2026 are set aside.
(4) The matter is remitted for the limited purpose of rephrasing the terms of orders 11, 12 and 13 in accordance with these reasons for judgment and reconsidering whether a different costs order should be made to that in order 17 in light of the setting aside and rephrasing of orders 11, 12 and 13.
(5) The appellants are to pay 80% of the costs of the respondent of the appeal, including with respect to the appellants’ motion filed on 11 May 2026.
Catchwords: ENVIRONMENT AND PLANNING – development consents to carry out different developments on rural land – construction of consents – nature and extent of developments approved – leave to adduce further evidence to construe a consent – carrying out of development in breach of consents – injunctions to restrain breach of consents – how conditions of consent may themselves be breached – whether terms of injunctions too broad and imprecise
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.1, 4.2, 4.3, 9.44, 9.46
Wollondilly Local Environmental Plan 1991
Cases Cited: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513; [2007] FCAFC 146
Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483
BMW Australia Ltd v ACCC (2004) 207 ALR 452; [2004] FCAFC 167;
Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563; [1990] FCA 84
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 49; [1980] HCA 44
Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69
Council of the City of Parramatta v Precision Rubber Service Pty Ltd [1995] NSWLEC 34
Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270; [1972] HCA 33
F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306
Gouriet v Union of Post Office Workers [1978] AC 435; [1977] UKHL 5
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; [1992] FCA 474
Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114
Lukaszewicz v Polish Club Ltd [2020] NSWCA 99
Owners Corp Strata Plan 533 v Random Primer Pty Ltd (2025) 21 BPR 45,455; [2025] NSWCA 8
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd (2018) 362 ALR 359; [2018] NSWCCA 202
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2003) 137 LGERA 115; [2003] NSWCA 270
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284
Wollondilly Shire Council v Godfrey and Ors (No 2) [2026] NSWLEC 34
Wollondilly Shire Council v Godfrey and Ors [2026] NSWLEC 21
Woolworths Limited v The Warehouse Group (Australia) Pty Ltd (2003) 123 LGERA 341; [2003] NSWLEC 31
Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244
Category: Principal judgment
Parties: James Godfrey (Appellant)
Wollondilly Shire Council (Respondent)
Representation: Counsel:
J Ireland KC (Appellant)
M Wright SC with D Robertson (Respondent)
Solicitors:
KM Harkness & Co (Appellant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2026/101598
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Mr Godfrey and his companies, Picton Sand and Soil Pty Ltd and ECC Earth Civil Contracting Pty Ltd (Godfrey), appeal from the decisions and orders of Robson J of the Land and Environment Court (the primary judge), which declare and restrain breaches of development consents granted under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Three consents were relevant:
(a) Development consent dated 11 August 1994 for “Dwelling & Shed for storage of earth moving equipment” (1994 consent);
(b) Development consent dated 22 August 1997 for “Wholesale Sand & Soil Yard” (1997 consent); and
(c) Development consent dated 29 June 2000 for “Retail Plant Nursery” (2000 consent).
Wollondilly Shire Council (the Council) had brought proceedings against Godfrey’s development and use of land at 28 Wonga Road, Picton (Lot 2 in DP 570466) (the land). The Council contended that Godfrey had carried out development, including erecting buildings and structures on the land, carrying out work and using buildings, works and the land, otherwise than in accordance with the development consents, in breach of s 4.2 and s 4.3 of the EPA Act.
The primary judge made ten declarations of past breaches of the development consents and six orders in the nature of injunctions remedying past breaches and restraining future breaches of the development consents. Godfrey appealed against the primary judge’s decision and orders in four respects:
(a) The primary judge erred in construing the 1994 consent as approving only a dwelling and shed for storage of earthmoving equipment and not the use of the whole of the land for the purpose of an earth moving establishment (appeal ground 1).
(b) The primary judge erred in construing the 1997 consent as limiting the scale and extent of the use of the land for wholesale sand and soil yard. The primary judge also erred by granting a related injunctive order (order 11) in general and unspecific terms which were inconsistent with a declaration also made by his Honour (appeal grounds 2, 3 and 4).
(c) The primary judge erred in construing the 2000 consent as approving a retail plant nursery and not an earthmoving business (appeal ground 5). In support of this appeal ground, Godfrey sought leave to adduce fresh or further evidence, including two plans, which Godfrey contended were received by the Council in respect of the development application and formed part of the 2000 consent.
(d) The primary judge erred in ordering Godfrey to pay the Council’s costs (appeal ground 6).
The Court held (Preston CJ of LEC, Leeming JA agreeing, Kirk JA agreeing with separate reasons regarding the injunctions made in orders 11, 12 and 13**):**
Ground 1: Construction of the 1994 consent
Grounds 2, 3 and 4: Construction of the 1997 consent
Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563; [1990] FCA 84, referred to.
Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270; [1972] HCA 33; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44; Council of the City of Parramatta v Precision Rubber Service Pty Ltd [1995] NSWLEC 34; Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69, referred to.
Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483; [1965] HCA 21; Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4; Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563; [1990] FCA 84; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; BMW Australia Ltd v ACCC (2004) 207 ALR 452; [2004] FCAFC 167; Australian Competition and Consumer Commission v Dataline*.Net.Au Pty Ltd (in liquidation)* (2007) 161 FCR 513; [2007] FCAFC 146; Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114, referred to.
Ground 5: Construction of the 2000 consent
Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147; Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480, referred to.
Ground 6: The costs order
LEEMING JA: I agree with Preston CJ of LEC.
KIRK JA: I agree with the orders proposed by Preston CJ of LEC. I also agree with his Honour’s reasons, save that I prefer to provide my own reasons with respect to the problems with three injunctions issued by the Court below, being orders 11, 12 and 13. The context in which the issue arises is explained in the judgment of his Honour.
Orders 11, 12 and 13 state that “each of the [appellants] by themselves, their servants, agents or assigns be restrained from using or causing or permitting the Land to be used in breach of” three identified development consents: see Wollondilly Shire Council v Godfrey [2026] NSWLEC 21 (PJ1). No outer time limit was imposed on these orders. In his Honour’s second judgment he delayed the commencement of these orders for three months, that having been his original intention: Wollondilly Shire Council v Godfrey *(*No 2) [2026] NSWLEC 34 (PJ2) at [38]-[40].
There are two overlapping difficulties with the orders. The first relates to the notion of breaching a development consent. The second is the unconfined manner in which the injunctions were expressed.
The term “development” is defined broadly in s 1.5 of the of the Environmental Planning and Assessment Act 1979 (NSW) (the Act). The definition includes the use of land, the erection of a building, and the carrying out of a work. Division 4.1 of the Act regulates the circumstances in which development may be lawfully carried out. There are three broad categories of development in that regard (leaving aside exempt development under s 1.6): (1) that which does not require development consent; (2) that which requires development consent; and (3) that which is prohibited.
As to the first category, s 4.1 states that if an environmental planning instrument (EPI) provides “that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies”. In such instances Div 4.1 does not prohibit the development being undertaken. A person can exercise whatever rights and liberties they have at general law to undertake the development. Of course, those rights and liberties might be restricted in other ways, including under the Act itself (eg under Pt 5), or under other legislation, or simply because their current rights and liberties do not extend to carrying out that development on that land (note Owners Corp Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8; (2025) 21 BPR 45,455 at [43] and [62]).
As to the third category, s 4.3 provides that if an EPI stipulates that specified development is prohibited on land to which the provision applies or cannot be carried out on land with or without development consent, then it is an offence to carry out the development on the land. The section imposes a simple prohibition.
As to the intermediate second category, s 4.2 relevantly provides:
4.2 Development that needs consent (cf previous s 76A)
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty—Tier 1 monetary penalty.
The term “development consent” is defined in s 1.4 to mean “consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate”.
The criminal prohibition on carrying out development in s 4.2 does not apply if all of the following criteria are met: development consent has been obtained, the consent is in force, the development is carried out in accordance with the consent, and the development is carried out in accordance with the EPI (if it imposes any relevant requirements). Justice Stephen explained the point with respect to an earlier planning scheme in this State in Eaton & Sons Pty Limited v The Council of the Shire of Warringah (1972) 129 CLR 270; [1972] HCA 33; see also House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23]. His Honour said (at 293-294):
Once granted [a consent] makes lawful, in a town planning context, what would otherwise be unlawful …
[A consent] is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant’s land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. … [T]he effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law.
Any conditions of the consent function as part of the delineation of the boundaries of the extent to which the prohibition is lifted. Within those boundaries the person can exercise whatever rights and liberties they have at general law to undertake the development.
If a person carries out development which requires consent in a manner which goes beyond what is authorised by a development consent, they breach s 4.2. That is not strictly because they are breaching the development consent. It is because they are doing something which is prohibited under the section, namely carrying out development not authorised by a development consent where such consent is required. That is apparent from the text of s 4.2: the words of prohibition are in the chapeau, namely “must not carry the development out on land to which the provision applies”. What follows after those words – ie “unless” both of the requirements in (a) and (b) are satisfied – addresses the relaxation of the prohibition. If the person is within the relaxation then they do not breach the prohibition. However, if their conduct does not satisfy the two requirements then they fall outside the boundary of the relaxation constituted by the development consent and in that way they contravene the prohibition.
To give an illustration, in some zones “home industries” may be permitted with or without development consent. Let us say that an applicable local environment plan (LEP) provided that home industries could be undertaken with development consent, and a person obtained such a consent which was subject to conditions, including as to the times in which that use could be carried out. The LEP was then amended so that home industries were permitted in that zone without development consent. The person then undertook that use outside the hours permitted in their development consent. They would be breaching the conditions on their development consent. But they would commit no offence under s 4.2, because the prohibition itself would no longer apply. Relatedly, a consent authority has no power to grant development consent for development not needing consent: Council of the City of Parramatta v Precision Rubber Service Pty Ltd [1995] NSWLEC 34; Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52 at [14].
Sometimes it may be natural to speak of a contravention of s 4.2 in terms of the development consent having been breached: eg Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 at [56]-[59], but note also [10]. Doing so might appear apt where a consent authorises the carrying out of development with some restrictive conditions, and a person undertakes that development on the land but does so in a manner which exceeds the conditions, such as exceeding permitted hours of operation. However, even in such cases strictly the contravention would be that the person was using the land (and thus carrying out development) in a manner for which development consent was required but where that consent did not extend to the use they were undertaking at that time.
9.46 Orders of the Court (cf previous s 124)
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may—
(a) where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or
(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. …
For the purposes of Div 9.5, references to the Act are defined to include, amongst other things, an EPI and “a consent granted under this Act, including a condition subject to which a consent is granted” (s 9.44(b)). References to a “breach” of the Act mean, for the purposes of the division, a contravention of or failure to comply with the Act along with a threatened or apprehended contravention or failure to comply (s 9.44(a)).
If a person undertakes development of a kind which requires consent in a manner which does not comply with the conditions of a relevant consent then they will have breached the Act because of their failure to comply with s 4.2, as just explained. However, arguably their conduct could also be characterised as “breaching” the condition in the development consent, given the extended definition of the Act in s 9.44(b). Whether in such circumstances there was one or two breaches of the Act, in its expanded meaning, need not be addressed here.
The relevant point is this. If and to the extent it is appropriate to speak of “breaching” a condition of a development consent for the purposes of civil enforcement that would be where a use requiring development consent was being undertaken purportedly pursuant to a development consent but in a manner which did not comply with a condition of that consent. The case at hand is significantly more complicated than that.
The appellants had obtained three development consents for, respectively, the uses of “Dwelling & Shed for storage of earthmoving equipment”, “Wholesale Sand & Soil Yard” and “Retail Plant Nursery”. The primary judge made a series of careful and specific factual findings about development and works that the appellants had undertaken on the land without development consent (PJ1 [90]). His Honour characterised some of these activities as involving development for purposes which were prohibited under the applicable LEP, and some as being for a purpose which was permissible with consent where such consent had not been obtained (PJ1 [91]). Some of the activities had some link to the matters addressed in the three development consents. Others had little connection. Can it meaningfully be said that those latter type of activities breached the development consents? That certainly could not be said for those activities which were prohibited under the LEP, because a consent authority has no power to grant consent for such development: North Ocean Shores at [14]. These points illustrate the uncertainty as to the meaning and effect of the orders in question in the context of this case.
As addressed below, injunctions should be clear and certain in their terms. In some cases the meaning and effect of an injunctive order might be clear in restraining “breaches” of a development consent. That might perhaps be so if the activities in question were identified, and those activities were clearly linked to undertaking the relevant type of development for which consent was required and had been obtained. This is not such a case. Here, no particular activities were identified in the three orders in question. And the breaches of the Act which had led to consideration of orders under s 4.2 were, to a significant extent, well removed from any development that had conditionally been authorised by a development consent. The orders should thus not have been made in those terms. These points lead to the other, overlapping difficulty.
Section 4.2 is a criminal prohibition. As a matter of general law, “[t]he issue of an injunction to restrain an actual or threatened breach of criminal law is exceptional”: Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 49; [1980] HCA 44 (Mason J); Gouriet v Union of Post Office Workers [1978] AC 435 at 481, 491, 497-500, 519-521; [1977] UKHL 5.
The same degree of reticence does not apply where, as here, the Parliament expressly has provided a power to grant injunctive relief in aid of statutory norms involving potential criminal or civil penalties. Pursuant to s 9.46, the Court must first positively be satisfied of a past, and/or a likely future, breach by the person or persons to whom its order is to be directed: Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 at [47]-[48]; Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444 at [30]-[31]; [36]. If that condition is met, then the Court is empowered in its discretion to make “such order as it thinks fit to remedy or restrain the breach”.
The section confers upon the Court a “wide charter” to frame its orders according to the circumstances before it and with regard to the objects of the Act: F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 at 311-313 (Street CJ). It is well-established that such statutory injunctions should only be issued where warranted. The Court’s statutory power to make “such order as it thinks fit” empowers the Court “to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it”: F Hannan at 311. And as the Full Court of the Federal Court explained in Australian Competition and Consumer Commission v Dataline*.Net.Au Pty Ltd (in liquidation)* (2007) 161 FCR 513; [2007] FCAFC 146, in the context of another statutory power authorising injunctive orders:
[110] We are inclined to think that in general, a court order requiring a person to conduct themselves in a particular way when a statute requires that conduct in any event, will add little to the statutory prescription or proscription and the statutory sanctions attending non-compliance. We accept that such an order may add the possibility of imprisonment for contempt where the relevant contravention would not otherwise lead to that consequence. However, if Parliament has not provided for imprisonment in connection with a contravention, it may not be appropriate for a court to enjoin such conduct simply in order to create the possibility of imprisonment. While Parliament has provided for an injunction as a possible remedy, it may be doubted that it intended that an injunction would be a remedy granted in the ordinary course in the face of the statutory sanctions Parliament has itself provided. Moreover, a Court has an interest in maintaining the efficacy of injunctive relief which requires that orders be respected. They will only be respected if they consistently serve a useful purpose and if breaches are discovered and punished. It may also be doubted that a court order requiring conduct which a statute otherwise requires will be seen to have some greater or different significance to the statutory requirement.
Such injunctions conflict with the general precept, applicable to the exercise of power under s 80 of the [Trade Practices] Act as much as to the framing of injunctions in aid of legal and equitable rights, that a final injunction should bear upon the case alleged and proved against the defendant …
Thus “[i]n each case, it is a question whether the conduct concerned warrants the application of those more stringent consequences” available pursuant to a finding of contempt beyond those consequences already provided for by the statutory scheme: BMW Australia Ltd v ACCC [2004] FCAFC 167; (2004) 207 ALR 452 at [39].
Commonly the principle will involve looking both backward and forward in time. Considering what a respondent has been found to have done in the past will inform an assessment of whether some future restraint is justified. Merely because a respondent has been found to have breached s 4.2 in some regard does not of itself provide a sufficient foundation to make an order injuncting a future contravention, let alone any future contravention, of that provision by that person. And on any view it is necessary to look forwards.
It was not suggested in this case that the Court could only impose future restraints under s 9.46(1) if satisfied that a breach of the Act will likely be committed unless restrained by order of the Court. The breadth of the discretion in s 9.46 and its predecessors has been emphasised in cases such as F Hannan and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341. Moreover, there are cases applying s 9.46 which proceed on the basis that a finding of a past breach sufficiently satisfies the statutory condition in the provision to grant relief restraining future breaches, without any requirement to find that it is likely that the subject party would otherwise commit such future breaches: see eg Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 at 250 and 261; Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31; (2003) 123 LGERA 341 at [18]-[20], affirmed in Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270; (2003) 137 LGERA 115 at [46]-[50].
On that view the Court still must be persuaded that some future-looking order is warranted in the exercise of its discretion as part of meeting the justice of the situation. That necessarily looks forward to consider the risks of future breaching conduct. That past contraventions have been established does not of itself mean that such relief should be granted. As the Full Court stated in Dataline (in considering s 80 of the Trade Practices Act 1974 (Cth)):
[111] Many contraventions simply will not justify injunctive relief. We doubt whether unintentional misconduct in contravention of s 52 would lead to such relief. An isolated intentional breach may also not warrant it. Conduct which occurred many years before the enforcement proceedings may not do so, especially if the offender has not recently infringed the law, or is no longer in a position where contravention is likely. …
[114] The experience of the law is that unlawful or illegal conduct does not lead to an injunction against repetition of such conduct being sought or granted. A range of other remedies exist in the civil and criminal law which are treated as adequate and appropriate sanctions for such conduct. Normally, it is only where there is a real risk of further misconduct that injunctive relief is contemplated. …
Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed.
This passage was quoted approvingly by this Court in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [29]. More generally, the discussions in Commodore, ICI and Dataline were cited approvingly in Lukaszewicz v Polish Club Ltd [2020] NSWCA 99 at [31].
If an order (or an undertaking) is ambiguous or lacks precision then it runs the risk that it will prove ineffective to support a contempt charge: eg Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 at 503-6 and 515-516; [1965] HCA 21.
The two principles I have identified were linked together by six members of the High Court in Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4, at [58], in saying that “an injunction should not be framed in terms which do no more than reproduce the text of a statutory prohibition; rather, the injunction should indicate the conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected on its part”. The plurality cited the discussion in ICI, and the authorities discussed in that case (which included Commodore), in support of that statement.
In this case, as explained, the primary judge had made detailed findings about how the appellants had engaged in unauthorised and unlawful development in a range of ways (PJ1 [90]-[92]). In then granting relief, his Honour made four types of remedial order:
Orders 1-10 were declarations about past conduct and about interpretation of the development consents in particular respects.
Orders 11-13 were, as noted, future-looking negative restraints that “each of the [appellants] by themselves, their servants, agents or assigns be restrained from using or causing or permitting the Land to be used in breach of” the three identified development consents. The commencement of these orders was suspended for three months in his Honour’s second judgment.
Orders 14 and 15 were orders requiring that positive action be taken by the appellants within three months to remove identified structures, works, materials, plant and equipment on the subject land. Those orders were expressed in precise and clear terms.
Order 16 imposed a negative, future-looking restraint on the appellants and their agents (etc) from “carrying out development on the Land in the nature of and use of structures and materials listed in subparagraphs 14(a)-(h) and 15(a)-(b) above without first obtaining development consent for any such development”. Because that injunctive order picked up orders 14 and 15, it, too, was precise and clear. And the order did not depend on any notion of breaching a development consent.
His Honour’s main concern in granting orders 11-16 seems to have been remedying the ongoing breaches of the regulatory scheme (see PJ1 [96]-[108]). His Honour did not address expressly why broad and general future restraints in the terms in orders 11-13 should be imposed, although he did refer for example to a “pattern” of behaviour (PJ1 [96]) and to the long history of concerns being expressed by the Council and by neighbours but rebuffed or ignored by Mr Godfrey (PJ1 [100]).
[44] However, given my findings at [98]-[108] that there were “intermixed” and “intertwined” activities being undertaken on the Land well in excess of the conduct that was properly the subject of D70/97, D179/94 and D144/00, subject to the above, I consider the orders are otherwise sufficiently clear and, on their terms, require compliance with the said consents.
That the activities may have been multifaceted, and raised issues relating to three development consents, was not a sufficient basis to warrant imposing generic and all-encompassing restraints.
Moreover, and as a consequence of the absence of detail in the orders, there is no sufficient nexus between the breaches his Honour found and the injunctions granted. To give a simple example, a condition in the 2000 development consent was that the premises approved for use as a retail plant nursery should be “maintained in a clean and tidy state at all times”. None of the alleged and proved allegations against the respondents had anything to do with not complying with that condition. In that context, it was unwarranted to put the respondents at risk of contempt for not complying with it. Yet that was the effect of order 13 (assuming it was efficacious at all).
The exercise of the discretion to make orders 11-13 miscarried. Those orders should be set aside and the matter remitted to the primary judge to reconsider the issue according to law.
PRESTON CJ of LEC: Mr Godfrey and his companies, Picton Sand and Soil Pty Ltd and ECC Earth Civil Contracting Pty Ltd (I shall refer to all three collectively as ‘Godfrey’), appeal from the decisions and orders of Robson J of the Land and Environment Court (the primary judge) declaring and restraining breaches of development consents granted under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Wollondilly Shire Council (the Council) had brought proceedings in class 4 of the Court’s jurisdiction to Godfrey’s development and use of land at 28 Wonga Road, Picton (Lot 2 in DP 570466) (the land). The land is 5.4ha in area.
The Council had contended in the court below that Godfrey had carried out development, including erecting buildings and structures on the land, carrying out work and using buildings, works and the land in breach of s 4.2 and s 4.3 of the EPA Act. Godfrey defended the proceedings by arguing that four development consents granted in 1994, 1997, 2000 and 2007 authorised all of the developments which Godfrey had carried out on the land. These development consents were:
(a) Development consent dated 11 August 1994 for “Dwelling & Shed for storage of earth moving equipment” (1994 consent); (b) Development consent dated 22 August 1997 for “Wholesale Sand & Soil Yard” (1997 consent); (c) Development consent dated 29 June 2000 for “Retail Plant Nursery” (2000 consent); and (d) Development consent granted by the Land and Environment Court on 24 May 2007 for, among other activities, “Earthmoving Establishment, Retail Plant Nursery, Rural Industry – Wholesale Sand & Soil Supply …” (2007 consent).
(a) the 1994 consent only authorised the erection of a dwelling and shed for storage of earthmoving equipment and not storage of earthmoving equipment, trucks or goods outside of the shed or otherwise the use of the whole of the land for an earth moving establishment; (b) the 1997 consent had lapsed or, if not, only authorised a wholesale sand and soil yard on that limited part of the land shown in the approved plan and not the use of the whole of the land for an earth moving establishment or other purposes; (c) the 2000 consent had lapsed or, if not, only authorised a retail plant nursery on that part of the land shown on the approved plans and not the use of the whole of the land for an earth moving establishment or other purposes; and (d) the 2007 consent had lapsed.
The primary judge upheld the Council’s case, other than finding that the 1997 and 2000 consents had not lapsed: Wollondilly Shire Council v Godfrey and Ors [2026] NSWLEC 21 (the primary judge’s first judgment). The primary judge made ten declarations: one declaration that the 2007 consent had lapsed (order 1); three declarations as to what the 1994 consent authorised and Godfrey’s breach of the 1994 consent (orders 2, 3 and 4); two declarations as to what the 1997 consent authorised and Godfrey’s breach of the 1997 consent (orders 5 and 6); two declarations as to what the 2000 consent authorised and Godfrey’s breach of the 2000 consent (orders 7 and 8); and two declarations as to Godfrey’s carrying out of development that is prohibited or without development consent (orders 9 and 10).
The primary judge made six orders in the nature of injunctions: three negative injunctions restraining Godfrey’s use of the land in breach of the 1994, 1997 and 2000 consent (orders 11, 12 and 13); two positive injunctions for the removal of unlawful structures and materials (orders 14 and 15); and one negative injunction restraining the use of the structures and materials listed in orders 14 and 15 (order 16).
The primary judge ordered Godfrey to pay the Council’s costs of the proceedings unless Godfrey made an application for an alternative costs order (order 17). Godfrey did make an application for an alternative cost order, but the primary judge refused that application and confirmed the order that Godfrey pay the Council’s costs of the proceedings: order 2 of Wollondilly Shire Council v Godfrey and Ors (No 2) [2026] NSWLEC 34 at [70] (the primary judge’s second judgment).
Godfrey appealed against the primary judge’s decisions and orders in four respects:
(a) The primary judge erred in construing the 1994 consent (appeal ground 1). (b) The primary judge erred in construing the 1997 consent (appeal grounds 2, 3 and 4). (c) The primary judge erred in construing the 2000 consent (appeal ground 5). In support of this appeal ground, Godfrey sought leave to adduce fresh or further evidence, including two plans, which Godfrey contended were received by the Council in respect of the development application and formed part of the 2000 consent. (d) The primary judge erred in ordering Godfrey to pay the Council’s costs (appeal ground 6).
(a) Godfrey has not established grounds 1 and 2 as pleaded. (b) Grounds 3 and 4 should be upheld but only with respect to the terms of the injunction in order 11. (c) Leave to adduce the further evidence, including the two plans to construe the 2000 consent, should be granted. (d) Godfrey has not established ground 5 as pleaded. (e) Godfrey has not established ground 6. (f) Orders 11, 12 and 13 should be set aside. (g) The matter should be remitted for the limited purpose of rephrasing orders 11, 12 and 13 to more clearly specify the acts, matters and things that are to be restrained. (h) As Godfrey has largely been unsuccessful in the case it made on appeal, Godfrey should pay 80% of the Council’s costs of the appeal.
Godfrey contended that on a proper construction of the 1994 consent read with the development application, the 1994 consent approved the use of the whole of the land for the purpose of an earth moving establishment. Godfrey submitted that although the development application, in answer to the question on the form asking for “Description of proposed development”, stated that the development was “Dwelling & shed for storage of earthmoving equipment” and enclosed plans showing that proposed dwelling and shed, the proposed development was not limited to that dwelling and the erection and use of the shed.
First, Godfrey referred to the answer given in the development application to the question “Any goods to be manufactured and/or stored on site? Yes/No. If yes, give details on the type, size and quantity of goods to be manufactured and/or stored.” The answer was “Earthmoving Equip, Trucks, 1 or 2 200lt Drums of Engine Oil.” Godfrey submitted that by this answer, Godfrey was applying to store the earth moving equipment, trucks and drums of engine oil on the “site” and not just in the shed that was proposed to be erected.
Secondly, Godfrey referred to one of the plans submitted with the development application and approved by the grant of consent. This was a site plan of the land showing by hand drawing the location of the proposed dwelling and shed. Godfrey submitted that the balance of the land outside of the footprint of the proposed dwelling and shed was available to be used for storage of the earth moving equipment, trucks and drums of engine oil.
Thirdly, Godfrey relied on the report of the Council officer who assessed the development application. This report was provided to the Development & Environment Committee Meeting of Council on 8 August 1994. The report noted that the proposed development of “dwelling & shed for the storage of earth moving equipment” was “earth moving establishment”, which was a permissible purpose under the then in force, Wollondilly Local Environmental Plan 1991 (WLEP 1991). “Earth moving establishment” was defined to mean “a building or place used for the storage of earth moving equipment, including facilities for the parking, servicing and repair of that equipment but does not include a building or place used for the sale of goods”.
The report dealt first with the dwelling component of the proposed development. The report noted that the dwelling was currently acceptable but may become unacceptable if any future detached house were to be sited on the property. In that event, the report recommended that “the proposed dwelling forming part of this development application shall be reverted to only an office for the earth moving establishment”.
The report next dealt with the earth moving establishment/equipment storage component of the proposed development. The report stated:
“With respect to the earth moving establishment/equipment storage component of this development application it is considered that the use of the site is acceptable for the locality. In consideration of this proposal it is likely that some private maintenance and routine servicing of the equipment and machinery would be conducted on the property.”
The report recommended that the development application be approved subject to nine conditions. Condition 1 was that: “The development being carried out substantially in accordance with plans received by Council on 8 June 1994 except where amended by the conditions of consent.” These plans were the plans for the erection of the proposed dwelling and shed for the storage of earth moving equipment and the site plan showing the location of the dwelling and shed. Condition 4 implemented the report’s recommendation for the conversion of the dwelling into an office for earth moving establishment if a future dwelling house is approved. Condition 5 addressed the advice in the development application that drums of engine oil would be stored on the site and the report’s prediction that some private maintenance and routine servicing of equipment and machinery would be conducted on the property. Condition 5 provided: “The storage of any tanks or drums for oil, fuel, and petroleum products and servicing of vehicles shall be conducted within a bunded area within the building.”
The Council resolved on 8 August 1994 that the report and recommendation be adopted. Godfrey submitted that by reason of the Council adopting the report and recommendation, the Council granted development consent to the use of the whole of the land for the purpose of earth moving establishment, and not just the use of the shed for that purpose.
I reject this argument. The 1994 consent only authorised the carrying out of the developments of, first, the erection of the buildings of the dwelling and the shed (in accordance with the approved plans) and, secondly, the use of the dwelling building as a dwelling and the use of the shed building for the storage of earth moving equipment. At the time of grant of the 1994 consent, s 91(4) of the EPA Act provided:
“A consent to a development application for the carrying out of development, being the erection of a building, shall be sufficient to authorise the use of the building when erected for the purpose for which it was erected where that purpose is specified in the development application.”
Accordingly, although the development application did not expressly seek consent for the use of the dwelling and the shed, only the erection of the buildings of the dwelling and the shed, s 91(4) operated to authorise the use of the dwelling as a dwelling and the use of the shed for the storage of earth moving equipment. But s 91(4) did not have any further operation to authorise any use of any part of the land outside of the buildings of the dwelling or the shed. Nor did s 91(4) operate to authorise a use of the buildings of the dwelling and shed for any purpose other than the purpose specified in the development application.
On this basis, the 1994 consent authorised the use of the shed building for the storage of earth moving equipment, being the purpose specified in the development application. That purpose accorded with the purpose of earth moving establishment as defined in WLEP 1991 as a building or place used for the storage of earth moving equipment, including facilities for the parking, servicing and repair of that equipment. In the case of the 1994 consent, only the shed building was authorised to be used for the storage of earth moving equipment, not any other place on the land. The 1994 consent’s authorisation of the use of the shed for the storage of earth moving equipment included authorising facilities for the parking, servicing and repair of that equipment in the shed, but not in or on any other place on the land.
Neither the development application form nor the Council officer’s report affects this construction of the 1994 consent. The development application clearly limits the proposed development to the erection and use of the two buildings of the dwelling and the shed. The description of the proposed development is limited to “dwelling & shed for storage of earthmoving equipment”. The “plans/drawings and other information describing the development”, required by the development application form to accompany the application, were the plans for the erection of the buildings of the dwelling and the shed and a site plan showing the location of the dwelling and the shed. No plan, drawing or other information described the use as being carried out in or on any place other than in the buildings of the dwelling and the shed.
The specification of the goods to be stored on the site as being earthmoving equipment, trucks and drums of engine oil, in answer to the question on the development application form, was not a description of the development as occurring in any place other than in the buildings of the dwelling and the shed. Rather, that was a description of what goods would be stored in the shed that was to be used for storage of earth moving equipment.
For these reasons, I reject ground 1.
Ground 2 contended that the primary judge “erroneously construed the ambit of [the 1997 consent] and in particular misapprehended the extent of the activities which continued to be permissible to be carried out by the Appellants upon the subject land pursuant to that subsisting consent”.
The development application for the 1997 consent described the proposed development as “Sand & Soil Yard”. In answer to the question of the estimated cost in the development application form, Godfrey stated “$2,000”. In answer to the question in the development application form, “Is the proposal for a commercial/industrial development or for a shop/office occupation?”, Godfrey answered “Yes”. In answer to the question “If yes”, indicate certain information, Godfrey stated:
“- Days & Hours of Operation: 6 days, 8 hrs
- Plant & Machinery to be installed: Nil
- Type, size & Quantity of goods to be stored, made or transported…: Approx 100 ton Various Landscape & Garden Supplies
- Goods to be retailed: Sand-Soil-Landscape Supplies
…
- Number of Employees: 3”
The development application attached one plan, which became the plan approved by the 1997 consent. That plan showed the location and design of the “Proposed Sand & Soil Bays to hold Landscaping Supplies”. The bays were located 25m away from the northern boundary of the land adjoining Wonga Road, 120m away from the western boundary of the land adjoining a neighbouring property, and to the east of the entry/exit driveway that allowed access to the “office” and “shed” erected in accordance with the 1994 consent. The bays were shown to be in two rows at a right angle to each other, one row running parallel to the northern boundary and another row running parallel to the western boundary.
The design of the proposed sand and soil bays was specified in the inset on the plan. The inset showed that the row running parallel to the northern boundary had 6 bays, as did the row running parallel to the western boundary. Each bay was 2.4m wide, 5m long and 1m high. The sides of each bay were to be constructed of hardwood sleepers and the back of the bay was to be concrete.
The plan showed the location of “Angle Parking” to the south of the proposed sand and soil bays and accessed by the entry/exit driveway.
The plan showed proposed landscaping along the northern and western boundaries, and in a short section to the east of the entry/exit driveway and to the west of the proposed sand and soil bays. This landscaping was proposed to be a hedge of Leyland Cypress. The plan also showed landscaping on the east and south boundaries of “Scrub”.
The 1997 consent granted consent to the development of “Wholesale Sand & Soil Yard”. Condition 1.1 required: “The development being carried out in accordance with amended/plans received by Council on 7 April 1997 except where amended by the conditions of consent.” The only plan that was received and approved by the Council was the plan showing the proposed sand and soil bays, to which I have earlier referred. Three conditions (Conditions 2.1-2.3) required the provision of 10 sealed car parking spaces and 3 sealed truck parking spaces and a sealed servicing area and loading area. Three conditions (Conditions 3.1-3.3) required installation of a suitable drainage system. Engineering design plans for these carparking and loading areas and drainage system were to be submitted to and approved by the Council (Condition 4.1). Four conditions (Conditions 5.1-5.4) required suitable sediment and erosion control measures. Security fencing was to be installed (Condition 6.1). Three conditions regulated the provision of landscaping (Conditions 7.1-7.3). Five conditions dealt with occupation and use of the site, including one requiring “The existing onsite shed shall not be used for residential purposes” (Condition 8.1). Two conditions regulated road and pedestrian access, Condition 9.1 requiring a combined ingress and egress and Condition 9.2 requiring vehicles to enter and exit the site in a forward direction. Conditions regulated signage (Conditions 10.1 and 10.2) and waste (Condition 11.1).
“Simply stated, it cannot be maintained that the relatively modest development sought in development application D70/97 for the sale of approximately 100 tonnes of various landscape and garden supplies (with the estimated cost of the development of $2,000) could be said to ground the extensive and intense industrial-scale development presently being conducted on the Land.”
“a. The 1997 consent issued by the Council did not by its terms define the scale of the business which might be conducted on the land.
b. In particular, the consent did not restrict the quantity of landscape and gardening supplies that might be stored on the land for sale to 100 tonnes (or to any other measure).
c. Nor did it restrict the facilities which could be created on the land for the designated use to facilities that might be built up to a maximum cost of $2,000.
d. Nor did it confine or mandate the places on the land at which stockpiles of materials could be stored ready for sale.” (Appellants’ written submissions in chief, [60]).
I reject this ground. The 1997 consent clearly limits the development of the wholesale sand and soil yard to those places on the land shown in the approved plan. The sand and soil bays were to be located in the position on the land shown on the plan and were to be constructed in accordance with the dimensions and materials specified in the inset on that plan. Sand and soil materials were to be placed only in these sand and soil bays and in no other place on the land. The number of bays, six in each of the two rows, and the dimensions of each bay (2.4m x 5m x 1m), necessarily limited the volume of sand and soil materials that could be held in those bays, and hence on the land.
The access, parking and loading areas were to be located in the positions on the land shown on the plan and were to be designed and constructed in accordance with the conditions of consent. These conditions necessarily limited where on the land access, parking and loading could take place.
The primary judge’s findings that Godfrey’s development and use of the land are in breach of the 1997 consent (see for example, [78] of the primary judge’s first judgment) were based on a comparison of the approved plan and conditions of consent with the activities carried out on the land. That is demonstrated by the primary judge’s conclusion in [79] of his first judgment:
“Although I have found that D70/97 has not lapsed, I find that the present activities and use of the Land (noted at [36], [48]-[53] above) go well beyond, and clearly are not in accordance with, either the plans approved or the conditions imposed by Council under D70/97.”
It is in this context that the primary judge’s reference in [80] to “the relatively modest development” sought in the development application needs to be understood. The primary judge’s findings that the activities go well beyond and are not in accordance with the 1997 consent were not dependent on what Godfrey said as to the tonnage of landscaping supplies or the estimate cost of the development in the development application.
In these circumstances, Godfrey has not established that the primary judge misconstrued or misapplied the 1997 consent in finding that Godfrey had carried out development not in accordance with the 1997 consent.
Grounds 3 and 4 were directed to the relief the primary judge granted in relation to the 1997 consent. The primary judge made two declarations (orders 5 and 6) in relation to the 1997 consent. Order 5 declared that the 1997 consent only authorised the use of the land as a wholesale sand and soil yard in accordance with the approved plan. With the rejection of ground 2, there can be no objection to the terms of this declaration. Order 6 declared that Godfrey is using, causing or permitting the land to be used in breach of the 1997 consent. That declaration followed from the primary judge’s findings. Again, with the rejection of ground 2, a declaration of non-compliance with the 1997 consent is not in itself objectionable.
The primary judge then made an order, in the nature of a negative injunction, restraining Godfrey “from using or causing or permitting the Land to be used in breach of development consent D70/97”: order 11 of the primary judge’s first judgment at [110].
Godfrey challenges the terms of this injunction on two grounds. Ground 3 contended that the primary judge, having found that certain activities and works undertaken by Godfrey were not in accordance with the 1997 consent, “failed to make an order which delineated those activities and works of the Appellants which were in accordance with that consent and those which fell outside it”. Ground 4 contended that the primary judge, “in making final orders on 27 February 2026, made a positive declaration as to the right of the Appellants to use the subject land as a wholesale sand and soil yard (Declaration 5) but inconsistently made an injunctive order (Order 11) as amended on 2 April 2026 which had the effect of restraining the Appellants in general and unspecific terms (upon risk of contempt proceedings) from any use of or activity upon the land as part of the operation of a wholesale sand and soil yard”.
Godfrey submitted in relation to both grounds 3 and 4:
“There was further error on the part of the primary judge in making a permanent injunction in the above general terms which failed to specify what act or acts on the part of the Appellants would constitute a breach of the 1997 consent and hence would also constitute a breach of the injunction raising the possible consequence of a contempt of court. This point is developed further under Ground 5 below.” (Appellants’ written submissions in chief, [65]).
I do not consider grounds 3 and 4, in the particular terms in which they are pleaded, are established, but underlying these grounds is a more basic concern that order 11 has been framed essentially as an injunction to obey the law. Order 11 restrains Godfrey from using the land in breach of the 1997 consent. This is essentially an injunction not to breach s 4.2(1) of the EPA Act. That section makes it an offence for a person to carry out development on land that an environmental planning instrument provides may not be carried out except with development consent unless the person first obtains such a consent and, secondly, carries out the development in accordance with the consent and the instrument. Ordinarily, it is undesirable for a court to issue an injunction that does no more than reproduce, but with the added risk of sanctions for contempt, that which a statute in terms prohibits: Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563; [1990] FCA 84 at 574-575 (Commodore).
There is however a further difficulty in the terms in which order 11 is framed. This is that the order does not clearly indicate the conduct which is enjoined. In Commodore at 575, the Full Federal Court stated that “a final injunction should bear upon the case alleged and proved against the defendant, and should indicate that conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected of him as a matter of fact”.
In this case, various of the positive injunctions issued by the primary judge accord with this instruction to indicate the conduct that is commanded to be performed, such as orders 14 and 15 which specify the structures, works and materials to be removed from the land. But order 11 lacks this specificity in indicating the conduct which is enjoined.
Order 11 also does not “bear upon the case alleged and proved against” Godfrey. The case alleged and proved against Godfrey concerned carrying out works on and using parts of the land and in ways not authorised by the approved plan or the conditions of consent. The Council’s case, accepted by the primary judge, was that “the present activities and use of the Land … go well beyond, and clearly are not in accordance with, either the plans approved or the conditions imposed by Council under D70/97” (at [79] of the primary judge’s first judgment). But the breach was not of all conditions of the 1997 consent, only those conditions which fixed the nature, extent and other features of the activities and use of the land. The primary judge did find in [78] that Godfrey had failed to comply with many conditions of the 1997 consent, including: “first, car parking and loading; second, engineering and construction specifications; third, erosion and sediment control; fourth, security fencing; fifth, landscaping; sixth, hours of operation; and seventh, storage and disposal of trade waste”. But most of those breaches were peripheral to the Council’s primary case that Godfrey’s present activities and use of the land were in breach of the 1997 consent. The non-compliance with the various conditions identified in [78] were not the respects in which the present activities and use of the land were claimed by the Council and found by the primary judge to be in breach of the 1997 consent.
Godfrey contended in ground 5 that the primary judge was misled by the evidence tendered by the Council as to the ambit and terms of the 2000 consent and the relevant plans and as a consequence misconstrued and misapplied the 2000 consent.
In support of this ground, Godfrey applied by notice of motion to tender two plans which Godfrey contended were submitted to and received by the Council in respect of the development application. The Council opposed the tender of these plans, first, on the basis that Godfrey had not satisfied the usual criteria for the admission of fresh or further evidence and, secondly, on the basis that the plans do not assist in the construction of the 2000 consent. I consider that leave should be granted to tender the two plans on the hearing of the appeal in this Court, notwithstanding that they were theoretically available to be obtained and tendered in the court below.
The Court had tendered in the bundle of documents in the court below the development application and supporting plans and documents and the 2000 consent and approved plans. This tender did not include the two plans now sought to be tendered. Neither the Council nor Godfrey were aware of the plans and hence did not know to tender the plans. The existence of the plans only came to light after the primary judge delivered judgment and further inquiries were made as to the existence of the plans. The Council in response to one of the later inquiries produced to Godfrey, from its files, correspondence between the Council and Godfrey which included the two plans. This is the material that Godfrey seeks to tender.
The Council had written to Godfrey on 21 February 2000 requesting additional information with respect to the development application. Relevantly, the Council said:
“The assessment of your application has commenced, and Council will endeavour to finalise the determination of the application as soon as possible. The preliminary assessment of the application has revealed the need for additional information, and to enable Council to be able to expediate [sic] the assessment, you are requested to submit the following information:
1. The plans submitted do not provide a satisfactory level of detail to allow a proper assessment of the application. Details required are the submission of a site plan drawn to an appropriate scale (1:500) and dimensionsed [sic] in metres detailing:
- the location of growing and retailing areas
- the number, location and dimension of car parking areas and access thereto
- other improvements and current uses on the site (e.g. earth moving business) and how this relates to the proposed development
- fencing details
- sealed, paved and hard stand areas.
2. The proposal is only permissible as a ‘retail plant nursery’ which means a building or place used for both the growing and retailing of plants. Your application must demonstrate to Council that the above requirements are met.”
“1. The plan issued was drawn to a scale of 1:2000. On the checklist and development application, we could see no mention of 1:500 scale. Please find details of the information you request on previously submitted plans to council (Plan #2, copy attached), which were approved under a previous DA and marked up copy of the recent copy (Plan #1) we issued you as well.”
Godfrey’s letter attached the two plans, marked Plan #1 and Plan #2. As Godfrey had said in the letter of 14 April 2000, Plan #1 was a marked up copy of a previously submitted plan. The base plan for Plan #1 was the same plan as had been submitted with the development application, but it had additional handwritten markings and text on that plan. Of relevance to Godfrey’s argument that the 2000 consent approved use of the land for the purpose of earth moving business, the plan had an area marked as a hand-drawn polygon depicting the “Area for Earthmoving business” and referred to Plan #2 for the detail of this business. In the legend at the foot of the plan, the text read “Area for Earthmoving business (See Detail on Plan #2) this relates to the proposed development by way of our trucks bringing materials in & machine to load materials.”
Plan #1 bore the stamp of the Council acknowledging that it was a plan referred to in the notice of consent dated 29 June 2000 (the 2000 consent).
Plan #2 was a different plan. Godfrey had described Plan #2 in the letter of 14 April 2000 as being “previously submitted plans to council (Plan #2, copy attached), which were approved under a previous DA”. But Plan #2 did not meet this description. The base plan of Plan #2 was not a plan approved by the 1994 consent or the 1997 consent. The heading of the plan stated it to be “Amendments DA 179/94 with DA 70/97”, but this is not correct.
Instead, Plan #2 appears to be a composite plan drawing on some features in the plans approved by the 1994 consent and the 1997 consent but adding other improvements and current uses on the land. A few of the buildings, structures and works shown on Plan #2 bear similarity to buildings, structures and works shown on the plan approved by the 1997 consent (including the same inset showing the proposed sand and soil bays), but most of the buildings, structures and works are different from those shown on the plans approved by the 1994 consent and the 1997 consent. In particular, where the proposed sand and soil bays were located on the plan approved by the 1997 consent is marked as “Prop. Shed/Office”; the location of the “Angle Parking” is located further to the north-east than the angle parking on the plan approved by the 1997 consent and an annotation reads “for Staff and Visitors”; the dwelling shown on the plans approved by the 1994 consent is labelled instead “Shed Workshop & Staff Facilities”; new structures and facilities are located to the west and south of the turning circle shown on the plan approved by the 1997 consent, being “Vehicle/Machine/Parking/Storage”, “U/G Collect. Pit”, “U/G Fuel Tank”, “Bowser” and “Prop. Extended Wash bay”. In a similar manner to Plan #1, an area defined by a hand-drawn ellipse surrounding those new structures and facilities was marked as being for “Earthmoving Business”.
Plan #2 had at the foot of the page text referring to seven checklists, but none of the checklists were attached. Again, the text appeared to be referring to the current uses of the site, regardless of the uses approved by the 1994 consent and the 1997 consent.
Godfrey contended in ground 6 that the primary judge erred in ordering Godfrey to pay the whole of the Council’s costs instead of making a partial costs order reflecting the fact that the Council did not succeed on the issues of whether the 1997 consent and the 2000 consent had lapsed. I reject this ground of appeal. Godfrey has not identified any error of the kind stated in House v The King (1936) 55 CLR 499; [1936] HCA 40, justifying this Court interfering with the primary judge’s exercise of discretion on a matter of practice and procedure.
Nevertheless, the primary judge may need to re-visit the question of the costs of the proceedings in the court below, both the original and the remitted proceedings, in light of this Court’s decision to set aside the primary judge’s injunctive orders as being inappropriately wide. The primary judge can determine on the remitter whether it is appropriate to make a partial costs order to address Godfrey’s success on the terms of the injunctive orders and, if so, the terms of any partial costs order. To enable this to occur, it is necessary to set aside the primary judge’s costs order and remit the question of costs to be re-determined by the primary judge.
Godfrey has been unsuccessful on grounds 1, 2, 5 and 6, and only successful on grounds 3 and 4 in relation to the terms of the injunction that the primary judge made in order 11. As I have explained, the terms of the injunction were too broad, effectively restraining Godfrey from breaching s 4.2(1) of the EPA Act by carrying out development not in accordance with the 1997 consent. That issue of the inappropriate breadth of the injunction also applies to orders 12 and 13 which restrain Godfrey from using the land in breach of the 1994 consent and the 2000 consent respectively. Godfrey did not challenge the terms of those orders in any of the grounds of appeal. Nevertheless, if order 11 (which was challenged) is to be reframed, so too should orders 12 and 13 (which were not challenged) be reframed.
Godfrey had suggested, in prayer for relief 4 in its notice of motion before the primary judge to amend orders 11,12 and 13, a form of words to narrow the breadth of the orders. That form of words was to add at the end of orders 11, 12 and 13, the words “by using any of the structures and works identified in 10 above in or for the purposes of the conduct of the Respondents’ business of a wholesale sand and soil yard or the Respondents’ business of a Retail Landscape and Nursery Supplies”. The primary judge rejected that suggested amendment in his second judgment. This Court enquired of both Godfrey and the Council whether, if the Court were to find that the orders were framed too broadly, that form of words would be appropriate to be added so as to narrow the scope of the orders. Godfrey agreed but the Council did not.
I consider that the addition of the words suggested by Godfrey will not address the issue of the breadth of the injunctive orders. As the Full Court of the Federal Court identified in Commodore, there are two issues to be avoided: first, an injunction should not be framed so as to command the defendant to obey the law or not to disobey the law and, secondly, an injunction should be framed to bear upon the case alleged and proved against the defendant. The words suggested by Godfrey do not adequately address either of these issues. Injunctions in those terms would still reproduce, although with some particularisation, the prohibition in s 4.2(1) of the EPA Act against carrying out development otherwise than in accordance with the relevant development consents, in breach of s 4.2(1) of the EPA Act, and would also leave Godfrey not knowing with sufficient particularity what is expected of him in carrying out development on the land so as not to breach the relevant development consents.
Godfrey submitted that in the event that this Court were not satisfied that the words which Godfrey had suggested would be sufficient to address these issues regarding the terms of the injunctions, this Court should remit the matter to the primary judge to rephrase the injunctions. The primary judge will have a better knowledge of all the relevant facts and be in a better position to identify the buildings, structures, works and land that Godfrey should be enjoined from using so as not to breach the relevant development consents. The Council submitted that this Court is in as good a position as the primary judge to rephrase the injunctions based on the facts as found by the primary judge.
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Godfrey
Wollondilly Shire Council
[1936] HCA 40
[1992] FCA 474
(2007) 161 FCR 513
(1965) 112 CLR 483
(2004) 207 ALR 452
(1990) 92 ALR 563
(1980) 147 CLR 39
(2009) 167 LGERA 52
(1972) 129 CLR 270
(2004) 220 CLR 472
(2011) 243 CLR 506
(2000) 48 NSWLR 498
(1936) 55 CLR 499
(2019) 101 NSWLR 1
(1992) 38 FCR 248
(2021) 248 LGERA 300
(2014) 86 NSWLR 34
(1999) 108 LGERA 66
(2018) 362 ALR 359
(2003) 137 LGERA 115
(1987) 10 NSWLR 335
(2002) 121 LGERA 444
(2003) 123 LGERA 341
(1996) 92 LGERA 244
Leave was granted to adduce the evidence identified in the appellants' motion filed on 11 May 2026. The appeal was upheld in part. Orders 11, 12, 13 and 17 made by Robson J were set aside. The matter was remitted to rephrase orders 11-13 and reconsider the costs order below. The appellants were ordered to pay 80% of the respondent's appeal costs, including the costs of the motion.
The further one moves away from the sort of development regulated by a consent, the clearer the point becomes. Here, for example, the consent granted in 2000 authorised a use of particular premises as a “retail plant nursery”. That would not extend (leaving aside questions as to ancillary uses) to using the premises as a wholesale plant nursery, nor a café, nor a factory. The person does not breach the conditions of the consent by undertaking those uses. It is simply that such uses are not covered by the relaxation of the general development restriction which was granted by the development consent. Similarly, if a development consent authorises the erection of a building according to some approved plans, and the owner later adds an extension on the building without obtaining consent, the real issue is not that the consent is breached. Rather, the owner has simply undertaken development without consent where consent was required.
For the purposes of Div 9.5 of the Act, relating to civil enforcement, the position arguably is somewhat different. The Land and Environment Court is authorised to grant injunctions (amongst other orders) in a case such as this one by s 9.46, within that division:
Even assuming that his Honour sufficiently considered whether such future restraints should be imposed, beyond remedying the identified ongoing breaches, the decision to impose orders 11-13 manifests error of the kind identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. The primary judge acted upon wrong principles and failed to consider material considerations. That is so because the injunctions granted are not consistent with the principles identified above. Put simply, and even apart from the difficulty in this case of speaking of breaching a development consent, the orders are too broad. By restraining breach of development consents without identifying in what respects, the orders, in substance, simply restate the statutory prohibition.
His Honour addressed the criticism of excessive width and generality in PJ2:
Godfrey argued that the primary judge misconstrued the 1997 consent so as to limit the scale of the wholesale sand and soil yard approved by that consent. That misconstruction informed the primary judge’s findings that Godfrey’s development and use of the land far exceeded what was authorised by the 1997 consent. For example, the primary judge stated in [80] of his first judgment:
In these circumstances, the wide terms of the injunction restraining Godfrey from using the land in breach of the 1997 consent go beyond the case alleged and proved against Godfrey. The injunction needs to be re-framed to narrow its terms and scope so as to enjoin only that conduct of Godfrey that was proved to be in breach of the 1997 consent.
For these reasons, I uphold grounds 3 and 4 but only with respect to the terms of the injunction in order 11.
Unlike Plan #1, Plan #2 was not stamped by the Council as being a plan approved by the 2000 consent.
The 2000 consent was subject to Condition 1.2 which provided: “Development shall take place in accordance with plans and information received by Council in respect of Development Application No. D144/00 received 4 February, 2000 except where varied by the following conditions.” Godfrey argued that Plan #1 and Plan #2, as explained by Godfrey in the letter of 14 April 2000, answered the description of being “plans and information received by Council in respect of Development Application No. D144/00 received 4 February 2000”. Contrary to the Council’s submission, the plans and information did not need to be received by 4 February 2000, that was the date the development application was received, but instead they only needed to be received by the Council in respect of Development Application No. D144/00. As the plans and information submitted by Godfrey under cover of the letter of 14 April 2000 were in response to the Council’s request for additional information in its letter of 21 February 2000 to enable the assessment of the development application, the plans and information answer the description of being plans and information received by the Council in respect of the development application.
In these circumstances, leave should be granted to tender the two plans and the letters requesting and supplying the plans and information. Costs of the appellants’ motion should be treated as costs of the appeal.
Godfrey submitted that when the 2000 consent is construed in light of these plans, the primary judge can be seen to have misconstrued the use of the land that the 2000 consent authorised. Godfrey submitted that the 2000 consent authorised the use of the land for the earth moving business in the area marked on Plan #1 and Plan #2 and with the structures and facilities shown on Plan #1 and Plan #2. The primary judge’s findings with respect to the uses authorised by the 2000 consent were based on the plan approved by the 2000 consent, which was the base plan for Plan #1. That plan did not show the area and facilities used for the earth moving business.
I reject this ground. Even accepting that Plan #1, and potentially Plan #2, were plans approved by the 2000 consent, they did not authorise the use of the land, or the buildings or works on the land, for the purpose of earth moving business, for three reasons.
First, there needed to be an accordance between the development for which development consent was sought and the development for which development consent was granted. The consent granted could be no wider than the application to which it related: Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480 at [46] and Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [57], [59], [296]-[305].
In this case, the development for which development consent was sought and to which the Council granted development consent was for a retail plant nursery. Godfrey described the proposed development in the development application as “Retail Landscape & Nursery Supplies”. In the section of the development application form on “Particulars of proposed building”. Godfrey stated the type of building to be “Shed/Storage area” and the purpose for which the building was to be used to be “Office & Storage Shed for Landscape & Nursery Supplies”. The 2000 consent described the “approved use and/or development” to be “Retail Plant Nursery”. Condition 1.1 stated: “Development Consent is granted for the use of Lot 2 DP 570466, Wonga Road, Picton for a retail plant nursery.” Condition 1.3 provided that: “This consent does not permit the retailing (other than in a minor nature) of landscaping supply materials (eg. sand, soil, mulches, etc.).”
It is in this context that Condition 1.2 of the 2000 consent needs to be construed. The development to which Condition 1.2 refers, and which must “take place in accordance with plans and information received by Council in respect of Development Application No. D144/00 received 4 February, 2000”, is the development of a retail plant nursery, not any other purpose, including earth moving business. Godfrey never sought consent in the development application to use the land or any building or works on the land for the purpose of an earth moving business. Hence, although Plan #1 and Plan #2 might answer the description of being “plans and information received by the Council in respect of Development Application No D144/00 received 4 February, 2000”, the markings and annotations on Plan #1 and Plan #2 referring to the area and facilities for an earth moving business did not convert the application for consent for a retail plant nursery to be an application for consent for an earth moving business, or, when development consent was granted subject to condition 1.2 requiring the development to be carried out in accordance with Plan #1 and Plan #2, authorise the use of the area and facilities shown on the plans for an earth moving business.
Secondly, this construction of condition 1.2 of the 2000 consent and Plan #1 and Plan #2 is confirmed by a consideration of why the markings and annotations on Plan #1 and Plan #2 referring to the area and facilities for an earth moving business were made on the plans. The markings and annotations on Plan #1 and Plan #2 of the area and the facilities used for an earth moving business were made by Godfrey to provide the information requested by the Council in its letter of 21 February 2000. The Council had asked for the submission of a site plan detailing, amongst other things, “other improvements and current uses on the site (e.g. earth moving business) and how this relates to the proposed development”. The proposed development was identified at the top of the letter as “Retail Landscape & Nursery Supplies”. Godfrey’s letter of 14 April 2000 in response stated: “Please find details of the information you request on previously submitted plans to council…”. These details of the information requested were marked upon Plan #1 and Plan #2. The identification of the area of and facilities for the earth moving business on Plan #1 and Plan #2 was directly responsive to the Council’s request to identify “other improvements and current uses on the site (e.g. earth moving business)”. The purpose of identifying the area and facilities of the earth moving business was to show how these related to the proposed development of the retail landscape and nursery supplies, as the Council had requested.
In these circumstances, Godfrey’s identification on Plan #1 and Plan #2 of the area and facilities for the earth moving business that was currently being conducted on the land was not for the purpose of seeking development consent for the use of the area and facilities for the earth moving business, but rather to show how they related to the proposed development of the retail plant nursery.
Thirdly, the area and facilities for the earth moving business that Godfrey identified on Plan #1 and Plan #2 in response to the Council’s request for information were the existing improvements and current use of the land for an earth moving business. A development application can only seek development consent for, and a development consent can only be granted for, development that is to be carried out in the future, not development that has already been carried out: Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [39]. The existing improvements and current use of the land for the earth moving business that were marked on Plan #1 and Plan #2 were developments that had already been carried out, and hence were not developments for which consent could be sought or granted. The 2000 consent, therefore, could not grant consent to these past and present developments. Development consent could only be granted to use in the future the already constructed buildings, structures or works for the purpose of the earth moving business. But if consent for such future use for the purpose of earth moving business were to be sought, the development application would have needed expressly to have sought consent for such future use for the purpose of earth moving business and not retail plant nursery as the development application in fact did.
For these reasons, the primary judge did not misconstrue the 2000 consent as being limited to authorising a retail plant nursery and not an earth moving business. I reject ground 5.
I consider that the matter should be remitted to the primary judge to rephrase orders 11, 12 and 13. The primary judge is in a better position than this Court to rephrase the orders. As the primary judge observed a number of times, the activities and operations being carried out on the land are “intermixed” between the three consents (see for example, [96] of the first judgment). This makes identifying the particular conduct that is to be enjoined so as to prevent Godfrey being in breach of each of the three consents difficult. This Court is not in a position to do this. The primary judge will need to re-consider the evidence and his findings based on the evidence to craft the terms of the injunction with respect to each consent in ways that bear upon the case proved against Godfrey for each consent.
As to the costs of the appeal to this Court, Godfrey has had limited success, only as to the terms in which the injunctions were framed. To account for this limited success, I would order Godfrey to pay 80% of the Council’s costs of the appeal.
I propose the Court make the following orders:
Grant leave to adduce the evidence identified in the appellants’ motion filed on 11 May 2026.
The appeal is upheld in part.
Orders 11, 12, 13 and 17 of Robson J made on 27 February 2026 and amended on 2 April 2026 are set aside.
The matter is remitted for the limited purpose of rephrasing the terms of orders 11, 12 and 13 in accordance with these reasons for judgment and reconsidering whether a different costs order should be made to that in order 17 in light of the setting aside and rephrasing of orders 11, 12 and 13.
The appellants are to pay 80% of the costs of the respondent of the appeal, including with respect to the appellants’ motion filed on 11 May 2026.