Ground 1
26 Ground 1 raises the issue of whether the Council's claim has been satisfied. It is not the case that consent orders have been entered into which in some way reflect the orders and declarations sought by the Council. Rather what the Council relies on is that by virtue of the successful application for development consent for demolition of the house by a prospective buyer, the property now having been sold, the illegal demolition of the verandah has been "regularised". Further, demolition of the house can take place in accordance with a development consent. The relief sought in the Class 4 application is a declaration that the Respondent had carried out development without development consent, an order that the Respondent be restrained from carrying out or causing to be carried out any further demolition of the property unless development consent was obtained, and orders for reinstatement of the demolished verandah. The Council's claim has not been completely satisfied in these circumstances. The history of this matter suggests that a major issue for the Council was the need to ensure that the verandah was reinstated as much as the need to prevent further demolition of the house. That has not been achieved.
27 The Council has been successful in part in that it did obtain an undertaking from the Respondent that he not undertake any further demolition work without obtaining development consent. I do not consider the Council is entitled to all its costs by virtue of the application of Pt 15 r 7.
Ground 2
28 Were the proceedings justifiably commenced, continued and settled? (see Jan Yee). It is necessary to consider the chronology of events in this matter as set out at par 5. This shows that proceedings were commenced on 12 March 2004 after the Respondent, having demolished the verandah without development consent, failed to give an undertaking to the Council not to demolish the rest of his house. Given the conversations with the Respondent attested to by the Council officers before the proceedings commenced, I consider the proceedings were justifiably commenced. An undertaking that the Respondent would not demolish the building was given through his solicitor in June 2004 and again to the Court in October 2004. The development application for demolition of the building was lodged in October 2004 and development consent granted on 22 February 2005.