Reported Decision: (2007) 158 LGERA 1
Land and Environment Court
of New South Wales
CITATION: Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681 PARTIES: 41278 of 2006
APPLICANT
Great Lakes CouncilRESPONDENT
Nino Lani Aka Rinaldo Lani40237 of 2007
APPLICANT
Great Lakes CouncilFIRST RESPONDENT
SECOND RESPONDENT
Nino Lani Aka Rinaldo Lani
Lampo Pty LimitedFILE NUMBER(S): 41278 of 2006; 40237 of 2007 CORAM: Preston CJ KEY ISSUES: Civil Enforcement :- Clearing of native vegetation on public reserve - placing fill on land without obtaining development consent under relevant environmental planning instrument - breaches admitted by respondent - injunctive orders to remedy and restrain breaches of statutes - whether the Court should make a declaration in addition to injunctive orders so as to publicly expose and denounce the respondent's conduct - declaration not made - indemnity costs sought by Council - no special or unusual circumstances warranting departure from usual order of costs on party and party basis LEGISLATION CITED: Corporations Act 2001, s 1317E
Environmental Planning and Assessment Act 1979, s 76A, s 123(1), s 63(2)
Local Government Act 1993
National Parks and Wildlife Act 1974, s 118A(2), s 176A(1)
Native Vegetation Conservation Act 1997, s 12, s 21CASES CITED: ASIC v Atlantic 3 Financial (Aust) [2006] QSC 132 ;
ASIC v Rich (2005) 50 ACSR 500;
ASIC v Sweeney [2001] NSWSC 114;
Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225;
Corporation Affairs Commission v Transphere (1999) 15 NSWLR 596;
F Hannan Pty Limited v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306;
Harrison v Schippe [2001] NSWCA 13;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads (No.1) 1991 LGRA 265;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads (No.2) (1992) 75 LGRA 210;
Mead v Watson as Liquidator for Hypec Electronics (2005) 23 ACLC 718, (2005) NSWCA 133;
Rosniak v Government Insurance Office (1997) 41 NSWLR 608DATES OF HEARING: 9 October 2007
10 October 2007EX TEMPORE JUDGMENT DATE: 11 October 2007 LEGAL REPRESENTATIVES: APPLICANT
P W Larkin (Barrister)
SOLICITORS
Mallik ReesRESPONDENT
A Hudson (Solicitor)
SOLICITORS
Wilshire Webb
JUDGMENT:
LAND & ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON CJ
11 OCTOBER 2007
41278 OF 2006; 40237 OF 2007
GREAT LAKES COUNCIL V NINO LANI AKA RINALDO LANI; GREAT LAKES COUNCIL V NINO LANI AKA RINALDO LANI and LAMPO PTY LIMITED
JUDGMENT
1 HIS HONOUR: Great Lakes Council has brought two sets of proceedings to civilly enforce planning and environmental statutes.
2 In the first, proceedings number 41278 of 2006, the Council seeks orders to remedy and restrain breaches of three statutes: first, the Environmental Planning and Assessment Act 1979; second, the Native Vegetation Conservation Act 1997 (which was then in force); and third, the National Parks and Wildlife Act 1974. The breaches arise from two episodes of clearing of native vegetation on a public reserve by the respondent,…
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- Case
- [2007] NSWLEC 681
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether Lani had engaged in actions that contravened the Native Vegetation Act 2003 and the National Parks and Wildlife Act 1974, and if so, what remedies the court should impose to rectify the situation. The court had to consider the extent of Lani's obligations under the relevant legislation and whether the requested injunctive relief and expert engagement was necessary to address the harm caused to the reserve.
The court found that Lani had indeed engaged in activities that violated the statutory provisions protecting native vegetation and endangered ecological communities. It issued an injunction prohibiting Lani from further damaging the vegetation unless authorised by the plaintiff. The court also mandated that Lani engage a Bush Regenerator and an Ecologist to undertake specific remediation works, including weed control, removal of timber, and the erection of nest boxes. The court directed that these experts' fees, costs, and expenses would be borne by Lani. Additionally, the court ordered Lani to pay the plaintiff's costs associated with the proceedings.
The court further directed that the proceedings be adjourned to allow for further consideration of the remediation of the land and any other orders that may be necessary based on the evolving circumstances. The court granted leave for the parties to apply for further orders if sufficient cause, such as unforeseen or changed circumstances, were shown.
Orders
Orders of the court
In proceedings No. 41278 of 2006:
1. ORDER:
(a) that, except to the extent necessary to comply with these orders, the respondent, by himself, his servants and agents, be restrained from:
(i) cutting down, topping, lopping, removing or wilfully destroying vegetation on land ("the Land") known as Golden Ponds Public Reserve, Forster and described as lot 23 in DP 843479, other than in accordance with the consent of the applicant;
(ii) clearing native vegetation on the Land contrary to section 12 of the Native Vegetation Act 2003; and/or
(iii) picking plants on the Land that are part of the endangered ecological community Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South-east Corner Bioregions contrary to section 118A(2) of the National Parks and Wildlife Act 1974.
(b) that the respondent, within two (2) weeks of the date of these orders, retain the following experts, being experts acceptable to the applicant:
(i) a Bush Regenerator;
(ii) an Ecologist;
(c) that the respondent cause the Bush Regenerator to complete the following works:
(i) within two (2) months of the date of these orders, immediate weed infestation control measures within the area ("the Cleared Area") depicted as "CLEARED AREA" on the survey of Rennie Golledge Pty Ltd which is annexure "A" to these orders and the area within a distance of 30m from the boundary of the Cleared Area using techniques which the bush regenerator determines as appropriate to manage infestations of potentially dominant weed species, including but not limited to lantana (Lantana camara) and bitou bush (Chrysanthemoides monilifera subsp rotundata); and
(ii) within one (1) month of the date of these orders, removal of the piles of timber from the Cleared Area.
(d) that the respondent will cause the Ecologist to complete the following works:
(i) within one (1) month of the date of these orders, the erection of eleven (11) nest boxes on the Land, outside the Cleared Area, but within 30m of the boundary of the Cleared Area.
(ii) within two (2) months of the date of these orders, the carrying out of the comprehensive baseline year 0 survey, in accordance with the vegetation monitoring program as set out in annexure “B” to these orders and the submission of a report of this survey to the applicant (“the baseline year 0 report”).
(e) that the respondent will provide copies to the applicant of all retainers with, and instructions given to, the Bush Regenerator and the Ecologist, at the same time(s) as they are given to the Bush Regenerator or the Ecologist, as the case may be.
(f) that, in the event that the Bush Regenerator or the Ecologist is unable to continue to act under these undertakings, they may be replaced by the respondent engaging a replacement expert acceptable to the applicant to perform the relevant functions under these orders.
2. DIRECT that Schedule 7 to the Uniform Civil Procedure Rules applies to the performance of the duties of the Bush Regenerator and the Ecologist, as though they were a parties' single expert witness in these proceedings.
3. ORDER, notwithstanding Order 2, that the respondent pay all of the professional fees, costs and expenses of the Bush Regenerator and the Ecologist.
4. RESERVE liberty to all parties to apply for any further or other orders (including orders revoking or varying or supplementing or replacing these orders in whole or part, upon sufficient cause, such as unforseen or changed circumstances, being shown).
5. GRANT Liberty to apply on five (5) days notice.
6. ORDER that the respondent pay the applicant's costs of and incidental to these proceedings, as agreed or assessed, and that the applicant have leave to proceed to an assessment forthwith.
7. ORDER that the proceedings (including in relation to the question of what orders should be made for the further remediation of the Land) be adjourned to 20 March 2008 at 9.15am before Preston CJ. In proceedings No. 40237 of 2007:
1. ORDER that the respondents complete the following works upon the land (“the Land”) off Annecy Court, Amanda Crescent and Kenrose Street, Forster, being part of Lot 91 in DP 1059068, formerly Lot 25 in DP 847246, within four (4) months of the date of these orders:
(a) remove the fill from the area marked in yellow on annexure "A" to these Orders;
(b) complete construction of the "southern wetland" as depicted on the plan which is annexure "B" to these Orders;
(c) complete all works relating to the southern wetland as described on pages 3 and 4 of the letter which is annexure "C" to these orders;
(d) give notice to the applicant prior to the carrying out of the works referred to in this Order and permit the officers of the applicant to be present upon the Land during the carrying out of such works.
2. RESERVE liberty to all parties to apply for any further or other orders (including orders revoking or varying or supplementing or replacing these orders in whole or part, upon sufficient cause, such as unforseen or changed circumstances, being shown).
3. GRANT Liberty to apply on five (5) days notice.
4. ORDER that the respondent pay the applicant's costs of and incidental to these proceedings, as agreed or assessed, and that the applicant have leave to proceed to an assessment forthwith.
5. ORDER that the proceedings be adjourned to 20 March 2008 at 9.15am before Preston CJ.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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