Azzopardi v Gosford City Council

Reported Decision: (2002) 123 LGERA 118

New South Wales

Court of Appeal

CITATION:	Azzopardi & Ors v Gosford City Council & Anor [2002] NSWCA 234
FILE NUMBER(S):	CA 40070/02
HEARING DATE(S):	12 June 2002, 13 June 2002
JUDGMENT DATE:	19 July 2002
PARTIES :	Victor Azzopardi and Ors v Gosford City Council and Parit Pty Ltd
JUDGMENT OF:	Handley JA at 1; Davies AJA at 34; Foster AJA at 45

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40093/00
LOWER COURT JUDICIAL OFFICER :	Sheahan J

COUNSEL:	Appellants - T S Hale SC/ J F Kildea Respondent 1 - M C Fraser Respondent 2 - P C Tomasetti
SOLICITORS:	Appellants - Thompson Norrie, Maitland Respondent 1 - P J Donnellan & Co, Gosford Respondent 2 - G J Halpin, Miranda
CATCHWORDS:	RIVERS AND FORESHORES IMPROVEMENT ACT (NSW) 1948 - PROTECTED LAND - RIVER - EXCAVATION - DEVELOPMENT CONSENT
LEGISLATION CITED:	Environmental Planning and Assessment Act (NSW) 1979 Rivers and Foreshores Improvement Act (NSW) 1948
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509 Hope v Bathurst City Council (1980) 144 CLR 1 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40070/02
LEC 40093/00

HANDLEY JA
DAVIES AJA
FOSTER AJA

19 July 2002

Victor AZZOPARDI & Ors v GOSFORD CITY COUNCIL & Anor

RIVERS AND FORESHORES IMPROVEMENT ACT (NSW) 1948 – PROTECTED LAND – RIVER – EXCAVATION – DEVELOPMENT CONSENT

The respondent Council granted a development consent which was challenged by the appellants in Class 4 proceedings in the Land and Environment Court on the ground that the procedures required for integrated development had not been followed. Under s 22B(1) of the Rivers and Foreshores Improvement Act (NSW) 1948 the excavation of and the removal of material from protected land were prohibited without a permit. Section 22A of the Act defined protected land as land within 40 metres from the top of the bank or shore of protected waters. The definition of protected waters included a river. Sheahan J dismissed the appellants’ proceedings and they appealed. This appeal focused on two issues: whether a water course on the developer’s land was a river and whether the approved development involved excavation.

HELD: per Handley JA and Foster AJA: The appellants had not established that the watercourse on the developer’s land was a river within the meaning of the 1948 Act and the appeal therefore failed although the development did involve some minor excavation which could not be regarded as inconsequential. In any event the Court should as a matter of discretion refuse the appellants any relief.

: The watercourse was a river as defined but the appeal failed because the work carried out on the land was…