Carriage v Stockland (Constructors) Pty Ltd - [2002] NSWLEC 117

Land and Environment Court

of New South Wales

CITATION: Carriage v Stockland (Constructors) Pty Ltd and Another [2002] NSWLEC 117

PARTIES:
APPLICANT
Allan Carriage
FIRST RESPONDENT
Stockland (Constructors) Pty Ltd
SECOND RESPONDENT
National Parks and Wildlife Service

FILE NUMBER(S): 0301 of 2002

CORAM: Talbot J

KEY ISSUES: Interlocutory Relief :- whether s 90 consents are void for uncertainty - whether entitled to relief claimed for alleged breach of conditions of consent

LEGISLATION CITED: National Parks and Wildlife Act 1974 s 90, s 90(1), s 90(2)

CASES CITED: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148;
Fawcett Properties Ltd v Buckingham County Council [1961] AC 636;
Melville v Craig Nowlan & Associates Pty Ltd & Anor [2002] NSWCA 32, unreported

DATES OF HEARING: 10/07/2002, 11/07/2002

DATE OF JUDGMENT:
07/16/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Oshlack (Agent)
SOLICITORS
N/A
FIRST RESPONDENT
Mr N C Hutley SC with Mr S J Brockwell (Barrister)
SOLICITORS
Baker & McKenzie
SECOND RESPONDENT
Ms A Pearman (Barrister)
SOLICITORS
National Parks and Wildlife Service

JUDGMENT:

IN THE LAND AND Matter No. 0301 of 2002

ENVIRONMENT COURT Coram: Talbot J

OF NEW SOUTH WALES Decision Date: 16 July 2002

Allan Carriage

Stockland (Constructors) Pty Limited

National Parks and Wildlife Service

Second Respondent
REASONS FOR JUDGMENT

1. Wadi Wadi Coomaditchie Aboriginal Co-operative initiated these Class 4 proceedings with an application dated 26 June 2002. At the first return date on 27 June 2002 leave was given to change the name of the applicant to Wadi Wadi Coomaditchie Corporation.

2. I dismissed an application for interlocutory relief on 28 June 2002. Written reasons were published on that day.

3. The Registrar granted leave to amend an Application Class 4, which was filed in Court on 3 July 2002. This amended application nominated Allan Carriage, on behalf of Wadi Wadi Coomaditchie Aboriginal Corporation, as the applicant and joined the Director-General of the National Parks and Wildlife Service (“the NPWS”) as second respondent. The matter was then referred to Justice Pain as Duty Judge. Justice Pain made directions in regard to the conduct of a further application for interlocutory relief and then stood over the application to 8 July 2002 when the matter again came before myself, acting as Duty Judge. On that day the applicant filed in Court a notice of motion seeking the Korewal (La Perouse) Elouera (Illawarra) Jerrangarugh (Shoalhaven) Aboriginal Corporation (“KEJ”) to be joined as second applicant. The first respondent, in the meantime, filed a notice of motion returnable on 8 July 2002 seeking an order that the applicant provide security for costs. The application to join the second applicant was subsequently withdrawn and the notice of motion dismissed. On that same day, namely 8 July 2002 leave was granted for Allen Carriage to be joined as an applicant, with his consent. Thereafter, Wadi Wadi Coomaditchie Aboriginal Corporation was granted leave to discontinue, subject to any outstanding issue of costs.

4. Further amended applications Class 4 were filed at approximately…

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: [2002] NSWLEC 117
Decision Date: 07/16/2002

CaseChat Overview and Summary

Allan Carriage, on behalf of the Wadi Wadi Coomaditchie Aboriginal Corporation, sought interlocutory relief against Stockland (Constructors) Pty Ltd, the holder of development consents for a residential subdivision at Sandon Point near Bulli, north of Wollongong. The relief sought included an order to restrain the first respondent from laying foundations, erecting buildings, roads, or infrastructure, and removing any soil or earth stockpiled on the land. The applicant also sought a mandatory order that all soil or earth removed be brought back and replaced on the land under supervision of the applicant. The case was heard over two days. The applicant further sought a declaration that the s 90 consents held by the first respondent were void or voidable on the ground of uncertainty. The court considered the legal issues of whether the s 90 consents were void for uncertainty and whether the applicant was entitled to relief for the alleged breach of conditions of consent. The court found that the consents were not void for uncertainty, and there was no real likelihood that the applicant would succeed in having the consents declared void or voidable. The court also found that there was no real prospect of irreparable damage to artefacts damaged or disturbed otherwise than in accordance with the NP&W Act, and there was no serious question to be tried or prima facie case in respect of the identification of the areas covered by the two consents. The court dismissed the application for interlocutory relief, and the outstanding matter of the first respondent's application for an order for security for costs against the applicant was reserved.

Orders