Henry v Shellharbour City Council

[2005] NSWLEC 365

Land and Environment Court

of New South Wales

CITATION:	Henry and Ors v Shellharbour City Council [2005] NSWLEC 365
PARTIES:	Aaron Broad Henry, Roy Kennedy and Stephen Henry Shellharbour City Council
FILE NUMBER(S):	11541 of 2005
CORAM:	Cowdroy J
KEY ISSUES:	Practice and Procedure :- revocation by Council of order issued under s 121B - previous undertaking not to take any action at site without Court Order - whether Council released from undertaking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121B
CASES CITED:	Adam P Brown Male Fashions v Phillip Morris (1981) 148 CLR 170
DATES OF HEARING:	14/04/2005
EX TEMPORE JUDGMENT DATE:	04/14/2005
LEGAL REPRESENTATIVES:	APPLICANTS A Oshlack (agent) RESPONDENT N Williams SC SOLICITORS Blake Dawson Waldron

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

14 April 2005

11541 of 2004

AARON BROAD HENRY, ROY KENNEDY and STEPHEN HENRY
Applicants

SHELLHARBOUR CITY COUNCIL
Respondent

JUDGMENT

1 Cowdroy J: These proceedings relate to an appeal against an order dated 10 December 2004 issued by the respondent (“the Council”) pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (“the s 121B order”). The order was issued to the first-named applicant, Mr Aaron Henry.

2 On 23 March 2005 these proceedings were adjourned the Council subject to an undertaking proffered to the Court. A copy of the undertaking was placed on the Court file.

3 These proceedings again came before the Court on 12 April 2005. On that occasion the Council tendered a letter dated 11 April 2005, written by the Council and addressed to Mr Aaron Henry. The letter, in summary, gave notice that the Council revoked the s 121B order.

4 On 12 April 2005, the Council sought to be released from its undertaking on the basis that the s 121B order had been revoked. Since the applicants had received no prior notice of the revocation before the day of the hearing and had not had an opportunity to consider their position, these proceedings were adjourned until today. The Council now seeks to be released from its undertaking.

5 As a result of the revocation of the s 121B order, the Court is satisfied that there has been a material change in circumstances since 23 March 2005. Such circumstances warrant the Court revisiting the undertaking: see Adam P Brown Male Fashions v Phillip Morris (1981) 148 CLR 170 at 178.

6 Because the Council has revoked the order, and as the validity of that revocation is not challenged by the applicants, the Court is satisfied that there is no longer any basis for the undertaking to be continued. Accordingly the Court releases the Council from the undertaking provided to the Court on 23 March 2005.

7 Two issues, one of which is costs, remain unresolved. As there has been no agreement upon these issues, the Court will make the following orders:

1. The hearing is adjourned until 27 April 2005 at 10 am.

2. The applicants are to provide written submissions to the Council, together with any evidence upon which it wishes to rely, by 4 pm on Wednesday 20 April 2005. At the same time, the applicants are to provide to the Council a detailed estimate of their claim for any costs. Such claim is to be itemised and to show the amount of the expenditure claimed, the date of the expenditure, and the purpose for which such expenditure was incurred.

3. The Council is to provide to the applicants any submissions in reply and any evidence upon which it wishes to rely by 4 pm on Tuesday 26 April 2005.

4. The Council is released forthwith from the undertaking provided to the Court on 23 March 2005.

5. Costs, including the costs of the hearing today, are reserved.

8 The Court notes that adherence to the timetable set out in the above Orders is fundamental and the Court will require the parties to observe the time strictures imposed.