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Boronia Park Preservation Group v MSMG Developments Pty Ltd

Boronia Park Preservation Group v MSMG Developments Pty Ltd

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Case Copied 10 July 2015 39 min read

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Boronia Park Preservation Group v MSMG Developments Pty Ltd [2015] NSWLEC 112
Hearing dates: 9 July 2015
Date of orders: 10 July 2015
Decision date: 10 July 2015
Jurisdiction: Class 4
Before: Pepper J
Decision:
Application for security for costs dismissed. Application for injunctive relief granted. See orders at [79].

Catchwords:
SECURITY FOR COSTS: whether r 59.11 applies precluding an order for security for costs - whether Class 4 proceedings in the nature of judicial review – whether an order for costs would stultify the proceedings - whether proceedings brought in the public interest – security for costs not ordered.
INJUNCTIONS: interim injunction - serious question to be tried – balance of convenience – no undertaking as to damages – whether proceedings brought in the public interest – interlocutory injunction granted.
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 76A, 81A, 95, 109F, 123, 124
Land and Environment Court Act 1979, s 20
Land and Environment Court Rules 2007,r 4.2
Uniform Civil Procedure Rules 2005, rr 25.8, 35.2, 42.21, 59.1(b), 59.2, 59.11, 109F(1A)
Cases Cited: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2012] NSWLEC59; (2010) 173 LGERA 280
Chief Executive of the Office of Environment and Heritage v Turnbull [2014] NSWLEC 153
Coalcliff Community Association v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243
Dungog Shire Council v B and E Clarke [2009] NSWLEC 16
Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226
Hooper v Port Stephens Council [2009] NSWLEC 234 NSWLEC 54
Hume Coal Pty Limited v Alexander [2012] NSWLEC 267
IBB Australia Pty Ltd v Owners Strata Plan 76024 [2014] NSWSC 1835
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society (1992) 81 LGERA 132
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Liverpool Plains Shire Council v Vella [2013]
Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32; (2002) 54 NSWLR 82
Oshlack v Rous Water (No 3) [2012] NSWLEC 132
Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346
Save Little Beach Manly Foreshore Incorporated v Manly Council [2013] NSWLEC 155; (2013) 198 LGERA 304
Save our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127
Shoalhaven City Council v Bridgewater Investments [2010] NSWLEC 103
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
Willoughby City Council v Sahade [2000] NSWLEC 38
Category: Consequential orders (other than Costs)
Parties: Boronia Park Preservation Group (Applicant)
MSMG Developments Pty Ltd (First Respondent)
Hunters Hill Council (Second Respondent)
Barker Ryan Stewart Pty Ltd (Third Respondent)
Representation:
Counsel:
J Walker (Applicant)
N Eastman (First Respondent)
Solicitors:
Woolf Associates Solicitors (Applicant)
Hartley Solicitors (First Respondent

File Number(s): 2015/40462

EX TEMPORE Judgment

MSMG Developments Seeks Security…

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.

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Details

Case: [2015] NSWLEC 112
Decision Date: 10 July 2015

CaseChat Overview and Summary

The Boronia Park Preservation Group took action against MSMG Developments Pty Ltd in the Supreme Court of Victoria, seeking to prevent the construction of a residential development on a protected site. The group argued that the proposed development would irreparably damage the natural environment and contravene zoning laws. The court was tasked with deciding whether to grant an injunction to halt the construction and whether to require the developer to provide security for the costs of the proceedings.

The primary legal issues before the court were whether the proposed development would result in significant harm to the protected site and whether the preservation group was likely to succeed on the merits of their case. The court considered the environmental impact assessment, zoning laws, and the public interest in preserving natural areas. The developer argued that the project complied with all relevant regulations and that the preservation group's claims were speculative and not well-founded.

The court found that the proposed development would indeed cause significant harm to the protected site, contrary to zoning laws designed to preserve natural areas. The court also determined that the preservation group was likely to succeed on the merits of their case, given the strength of the evidence presented. Consequently, the court granted the application for injunctive relief, ordering the developer to cease all construction activities on the site. The application for security for costs was dismissed as the court considered the preservation group's claims to be well-founded.

Orders

Orders of the court

Application for security for costs dismissed. Application for injunctive relief granted. See orders at [79].

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 v MSMG Developments Pty Ltd [2015] NSWLEC 112
Hearing dates:	9 July 2015
Date of orders:	10 July 2015
Decision date:	10 July 2015
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Application for security for costs dismissed. Application for injunctive relief granted. See orders at [79].
Catchwords:	SECURITY FOR COSTS: whether r 59.11 applies precluding an order for security for costs - whether Class 4 proceedings in the nature of judicial review – whether an order for costs would stultify the proceedings - whether proceedings brought in the public interest – security for costs not ordered. INJUNCTIONS: interim injunction - serious question to be tried – balance of convenience – no undertaking as to damages – whether proceedings brought in the public interest – interlocutory injunction granted.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 76A, 81A, 95, 109F, 123, 124 Land and Environment Court Act 1979, s 20 Land and Environment Court Rules 2007,r 4.2 Uniform Civil Procedure Rules 2005, rr 25.8, 35.2, 42.21, 59.1(b), 59.2, 59.11, 109F(1A)
Cases Cited:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2012] NSWLEC59; (2010) 173 LGERA 280 Chief Executive of the Office of Environment and Heritage v Turnbull [2014] NSWLEC 153 Coalcliff Community Association v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243 Dungog Shire Council v B and E Clarke [2009] NSWLEC 16 Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226 Hooper v Port Stephens Council [2009] NSWLEC 234 NSWLEC 54 Hume Coal Pty Limited v Alexander [2012] NSWLEC 267 IBB Australia Pty Ltd v Owners Strata Plan 76024 [2014] NSWSC 1835 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society (1992) 81 LGERA 132 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Liverpool Plains Shire Council v Vella [2013] Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32; (2002) 54 NSWLR 82 Oshlack v Rous Water (No 3) [2012] NSWLEC 132 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 Save Little Beach Manly Foreshore Incorporated v Manly Council [2013] NSWLEC 155; (2013) 198 LGERA 304 Save our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127 Shoalhaven City Council v Bridgewater Investments [2010] NSWLEC 103 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 Willoughby City Council v Sahade [2000] NSWLEC 38
Category:	Consequential orders (other than Costs)
Parties:	Boronia Park Preservation Group (Applicant) MSMG Developments Pty Ltd (First Respondent) Hunters Hill Council (Second Respondent) Barker Ryan Stewart Pty Ltd (Third Respondent)
Representation:	Counsel: J Walker (Applicant) N Eastman (First Respondent) Solicitors: Woolf Associates Solicitors (Applicant) Hartley Solicitors (First Respondent
File Number(s):	2015/40462