Birdon Contracting Pty Ltd v Hawkesbury City Council

[2009] NSWLEC 143

Land and Environment Court

of New South Wales

CITATION:

Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 143

PARTIES:

APPLICANT:
Birdon Contracting Pty Ltd

RESPONDENT:
Hawkesbury City Council

OBJECTOR:
Neville Diamond

FILE NUMBER(S):

11133 of 2008

CORAM:

Biscoe J

KEY ISSUES:

INJUNCTIONS AND DECLARATIONS :- Class one proceedings – third party objector in present proceedings gave undertaking to Court in earlier proceedings in which it was the applicant not to lodge any objection to or raise any issue of fact or law in respect of a proposed modification application with respect to certain matters – applicant seeks injunction restraining objector from breaching undertaking or from making any submission as objector in the present proceedings – construction of the undertaking – whether objector in breach of or threatening to breach undertaking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 96

DATES OF HEARING:

10 August 2009

EX TEMPORE JUDGMENT DATE:

10 August 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Webster SC
SOLICITORS
Russell C. Byrnes

FIRST RESPONDENT:
Mr S Griffiths
SOLICITORS
Pikes Lawyers

OBJECTOR:
Mr N Eastman, barrister
SOLICITORS
n/a

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

10 August 2009

11133 of 2008

BIRDON CONTRACTING PTY LIMITED v HAWKESBURY CITY COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: In these class one proceedings the applicant, Birdon Contracting Pty Limited, appeals against the respondent Hawkesbury City Council’s refusal of its application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent relating to a sand quarry at Colo Heights. Now before the Court for determination are prayers 1 and 2 of a notice of motion by the applicant for orders against a third party objector, Mr Neville Diamond that he be restrained from breaching his undertaking to the Court made on 9 September 2005 in proceedings 40230 of 2005; alternatively, that he be restrained from making any submissions as an objector to the Court in the present proceedings. The claim to this relief depends on whether Mr Diamond is in breach of that undertaking by being an objector in the present proceedings or would be in breach by making submissions. That turns on the proper construction of the undertaking.

2 Mr Diamond gave the undertaking to the Court in earlier proceedings in which he was the applicant and Birdon Contracting Pty Limited was one of the respondents. The Court dismissed the earlier proceedings. Mr Diamond’s undertaking was relevantly in the following terms:

“The Applicant will not lodge any objection to or raise any issue of fact or law in respect of the proposed Section 96 Application and or Development Application or any approvals given to such applications with respect to the relocation of part of the diversion channel of Tinda Creek onto Lot 1 DP 628806 to amend the excavation area on Lot 2 DP 628806.”

3 It is common ground that the s 96 application the subject of the present proceedings is to amend the excavation area on lot 2 DP 628806 but that it is not to relocate part of the diversion channel of Tinda Creek onto lot 1 DP 628806. The applicant submits that the undertaking should be construed so as to be referable to the subject s 96 application. That is, that it should be construed as being applicable to a s 96 application to amend the excavation area on lot 2, even though it is not with respect to the relocation of part of the diversion channel of Tinda Creek onto lot 1.

4 I disagree. In my opinion, on the proper construction of the undertaking, it concerns a s 96 application which has as one of its components the relocation of part of the diversion channel of Tinda Creek onto lot 1. It therefore does not apply to the subject s 96 application. That is sufficient to dispose of the notice of motion, to the extent that it is before the Court. It is unnecessary to address other matters raised in argument.

5 Accordingly, the notice of motion insofar as it concerns prayers 1 and 2 is dismissed.