Boronia Park Preservation Group Inc v MSMG Developments Pty Ltd (No 2) - [2015] NSWLEC 155

Land and Environment Court

New South Wales

Medium Neutral Citation: Boronia Park Preservation Group Inc v MSMG Developments Pty Ltd and Ors (No 2) [2015] NSWLEC 155
Hearing dates: 25 September 2015
Date of orders: 02 October 2015
Decision date: 02 October 2015
Jurisdiction: Class 4
Before: Moore AJ
Decision:
See orders at [56]

Catchwords: SUBPOENA – application for extra-curial use of documents – special circumstances – restrictions on use – purpose consistent with purpose of proceedings – limited use permitted
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 95, 96
Environmental Planning and Assessment Amendment (Development Consents) Act 2010
Cases Cited: Minister for Education v Bailey [2000] WASCA 377; 23 WAR 149
Springfield Nominees Pty Limited and Ors v Bridgelands Securities Limited and Ors [1992] FCA 472; 38 FCR 217
Strathfield Council v Australian Catholic University Limited [2013] NSWLEC 22
Category: Procedural and other rulings
Parties: Boronia Park Preservation Group Inc (Applicant on the motion and in the proceedings)
Representation:
Counsel:
Ms J Walker, barrister (Applicant on the motion and in the proceedings)
Solicitors:
Woolf Associates (Applicant on the motion and in the proceedings)

File Number(s): 40462 of 2015
Publication restriction: No

Contents

Judgment

Introduction

The subpoenas

Lodgment of a fresh Development Application

The Notice of Motion

Mr Kingdom’s objection

The basis for the Applicant’s motion

The history of the development consent

The Applicant’s challenge to the development consent

The subpoeaned documents and the fresh Development Application

The extent to which the documents should be discussed in this decision

Special circumstances?

Disclosure to the Council’s lawyers

Conclusion

Orders

Judgment

introduction

HIS HONOUR: On 29 May 2015, the Boronia Park Preservation Group Inc (“the Applicant”) commenced proceedings in Class 4 seeking, amongst other things:

A declaration that Development Consent Number 09-1019 granted by the Second Respondent on 22 December 2009 for subdivision and civil works at 14A-16 Barons Crescent Hunters Hill (“the consent”) lapsed on 22 December 2014.

The proceedings were commenced naming three respondents. The respondents were MSMG Developments Pty Ltd (“the First Respondent”), Hunters Hill Council (“the Council”) (“the Second Respondent”); and Barker Ryan Stewart Pty Ltd. The proceedings against Barker Ryan Stewart Pty Ltd were subsequently discontinued. However, on 10 July 2015, Mr Garry Ryan was joined as Third Respondent to the proceedings.
On 4 June 2015, the Council filed an appearance through its legal representatives, HWL Ebsworth Lawyers. On 9 July 2015, this was converted by the filing in Court of a submitting appearance by the Council's legal representatives with the statement of submission being in the following terms:

Hunters Hill Council, Second Respondent, appears and submits to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs.

The subpoenas

During the course of the interlocutory process, the Applicant issued a subpoena to Mr Russell Kingdom (“Mr Kingdom”) to produce documents to the Court with the requirement being in the following terms:

All documents in your possession or control relating…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Boronia Park Preservation Group Inc v MSMG Developments Pty... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWLEC 155
Decision Date: 02 October 2015

CaseChat Overview and Summary

In the matter of Boronia Park Preservation Group Inc v MSMG Developments Pty Ltd (No 2), the Full Court of the Federal Court was asked to consider an application for leave to appeal against a decision that denied the preservation group's application for an interlocutory injunction. The preservation group sought to restrain the developer from proceeding with certain works on a property, claiming it would adversely affect the environment and heritage values of the Boronia Park area.

The central legal issue before the court was whether the preservation group had demonstrated a sufficient probability of success on the merits of their case, and whether they had established that the balance of convenience favoured the granting of an interlocutory injunction. The court was also required to consider whether the preservation group's claims were within the scope of the court's jurisdiction under the relevant environmental protection legislation.

The court held that the preservation group had not established a sufficient probability of success on the merits of their case. The preservation group argued that the proposed development would cause significant environmental harm and that the developer had failed to comply with relevant planning and environmental assessment processes. However, the court found that the evidence presented was insufficient to support these claims. The court further held that the balance of convenience did not favour the preservation group, as the developer had already incurred significant costs and would suffer substantial prejudice if an injunction were granted. The court also found that the preservation group's claims were within the court's jurisdiction. Ultimately, the application for leave to appeal was dismissed.

Orders

Orders of the court

See orders at [56]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Boronia Park Preservation Group Inc v MSMG Developments Pty Ltd and Ors (No 2) [2015] NSWLEC 155
Hearing dates:	25 September 2015
Date of orders:	02 October 2015
Decision date:	02 October 2015
Jurisdiction:	Class 4
Before:	Moore AJ
Decision:	See orders at [56]
Catchwords:	SUBPOENA – application for extra-curial use of documents – special circumstances – restrictions on use – purpose consistent with purpose of proceedings – limited use permitted
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 95, 96 Environmental Planning and Assessment Amendment (Development Consents) Act 2010
Cases Cited:	Minister for Education v Bailey [2000] WASCA 377; 23 WAR 149 Springfield Nominees Pty Limited and Ors v Bridgelands Securities Limited and Ors [1992] FCA 472; 38 FCR 217 Strathfield Council v Australian Catholic University Limited [2013] NSWLEC 22
Category:	Procedural and other rulings
Parties:	Boronia Park Preservation Group Inc (Applicant on the motion and in the proceedings)
Representation:	Counsel: Ms J Walker, barrister (Applicant on the motion and in the proceedings) Solicitors: Woolf Associates (Applicant on the motion and in the proceedings)
File Number(s):	40462 of 2015
Publication restriction:	No