The ERD Court has recently delivered a judgment that is critical of a Council’s attempt to use enforcement proceedings for an improper purpose.
In 2011 the District Council of Robe commenced proceedings against the respondents (Mr and Mrs Bishop) for starting but failing to complete the construction of their dwelling within 3 years of receiving development approval.
The Council subsequently granted a new approval for a dwelling on the land, permitting the construction to be completed. Notwithstanding the new approval, the Council sought to use the existing proceedings to force the respondents to complete the construction work by a specified date. In effect, the proceedings were “being maintained for a collateral purpose, namely to put pressure on the respondents to finish as soon as possible”.
The Court dismissed the proceedings on the basis that they were frivolous and vexatious and being maintained by the Council for an improper purpose.
It is understood that the respondents intend to seek an award of costs against the Council.
The decision has the potential to influence the way in which enforcement proceedings are resolved, particularly in situations where a development approval has subsequently been granted.
A copy of the judgment can be found at: http://www.austlii.edu.au/au/cases/sa/SAERDC/2014/54.html
Tom Game February 2015