What has happened?
In Godfrey v Wollondilly Shire Council [2026] NSWCA 181, the Court of Appeal upheld findings that a landowner in Picton had used his rural property beyond what three old development consents allowed. However, it set aside injunctions that were drafted too broadly.
Context
The land had three development consents, granted in 1994 (a dwelling and a shed for storing earthmoving equipment), 1997 (a wholesale sand and soil yard) and 2000 (a retail plant nursery). The Council alleged the owner and his companies were running an earthmoving and soil business across the property, well beyond what had been approved.
The Land and Environment Court made ten declarations of breach and six injunctions. The owner appealed, arguing the consents had been read too narrowly.
The decision
Reading the consents. The Court of Appeal agreed with the trial judge that:
the 1994 consent authorised only a dwelling and a shed for storing earthmoving equipment, not the use of the whole property as an earthmoving business; and
the 1997 consent limited the sand and soil yard to the areas shown on the approved plan.
Drafting injunctions. Three of the injunctions simply restrained the owner from using the land in breach of each consent. The Court held these were too broad and imprecise:
An injunction must be tied to the facts of the particular case and framed clearly, so the person bound knows exactly what they must not do.
An order that just restates the statutory prohibition does not meet that standard.
Justice Kirk added that carrying out development beyond what a consent authorises is, strictly, a breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (carrying out unapproved development), rather than a "breach of the consent".
Those injunctions were sent back to the trial judge to be redrafted. The owner, having largely failed, was ordered to pay 80% of the Council's appeal costs.
How will this affect you?
Old consents are read according to their terms and approved plans. Uses that have grown over time are not authorised just because the land has a consent of some kind.
Councils seeking injunctions should identify the specific conduct to be restrained, rather than seeking orders in general terms.
Landowners facing enforcement action should review exactly what each consent permits, including the approved plans.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.