Kennedy v Stockland Development Pty Ltd - [2010] NSWLEC 250

Land and Environment Court

of New South Wales

CITATION: Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250

PARTIES: APPLICANT
Roy Kennedy
FIRST RESPONDENT
Stockland Development Pty Ltd
SECOND RESPONDENT
Minister for Planning

FILE NUMBER(S): 40880 of 2010

CORAM: Pain J

KEY ISSUES: INTERLOCUTORY RELIEF :- whether interlocutory orders restraining excavation and vegetation clearing ought be made - whether serious question to be tried

LEGISLATION CITED: Contaminated Land Management Act 1997
National Parks and Wildlife Act 1974 s 86
Protection of the Environment Operations Act 1997 s 116
SEPP (Major Development) Amendment (Sandon Point) 2009

CASES CITED: Castlemaine Tooheys v State of South Australia [1986] HCA 58; (1986) 67 ALR 553 at 557

DATES OF HEARING: 26 November 2010
29 November 2010

DATE OF JUDGMENT:
30 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Oshlack (agent)
FIRST RESPONDENT
Mr H El-Hage
SOLICITOR
Herbert Geer
SECOND RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 November 2010

40880 of 2010 Kennedy v Stockland Development Pty Ltd and the Minister for Planning
JUDGMENT

: The Applicant seeks urgent interlocutory injunction orders restraining the First Respondent in relation to work on a large residential subdivision at Sandon Point near Wollongong (the site). The First Respondent was granted development consent subject to conditions by the Minister for Planning as a major project under State Environmental Planning Policy (SEPP) (Major Development) Amendment (Sandon Point) 2009 on 29 November 2009. The orders sought are:

1. The Applicant moves for an urgent interlocutory order to restrain the First Respondent it’s

employees, servants and contractors from undertaking any activity involving vegetation clearing, disturbance to soil, earthworks or movement of any item of Aboriginal heritage in the Riparian Zones of Woodlands and Hewitts Creeks as described in the map adopted for the State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009 until further order.

2. An urgent order restraining the First Respondent it’s

employees, servants and contractors from undertaking any activity to remove any remaining vegetation within the development footprint until further order.

3. Any further order or direction the Court deems appropriate.

4. Costs of the Motion.

2 The areas the subject of prayers 1 and 2 are indicated on exhibit D. Prayer 1 refers to restraining work in the riparian zones of Woodlands and Hewitts Creeks. Prayer 2 is intended to restrain the clearing of strips of vegetation around several parts of the boundary of the site. The site was referred to in evidence as the AIR site. Construction certificates were issued on 8 September 2010 and 24 November 2010 as provided for in the major approvals consent.

3 Paragraph 7 of the Points of Claim (POC) states that the Applicant is an Aboriginal person of the Yuin Nation and spokesperson and ambassador for the Sandon Point Aboriginal Tent Embassy (SPATE). The Applicant was represented by his agent Mr Oshlack. The Minister has filed a submitting appearance.

4 The conditions of the major project approval…

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: [2010] NSWLEC 250
Decision Date: 30 November 2010

CaseChat Overview and Summary

Kennedy, an Aboriginal person of the Yuin Nation and spokesperson for the Sandon Point Aboriginal Tent Embassy, sought urgent interlocutory orders to restrain Stockland Development Pty Ltd (the developer) from engaging in vegetation clearing, disturbance to soil, earthworks, or movement of any item of Aboriginal heritage in the riparian zones of Woodlands and Hewitts Creeks and to remove any remaining vegetation within the development footprint. The developer was granted development consent subject to conditions by the Minister for Planning as a major project under the State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009. The applicant contended that the developer had undertaken illegal work before the issue of a construction certificate and that it was causing harm to the Aboriginal place by discharging polluted water. The developer denied the allegations and argued that it had complied with the conditions of its development consent. The court considered whether there was a serious question to be tried, a prima facie case, irreparable injury, and the balance of convenience. The court found that the applicant had not established that there was any illegal work undertaken before the construction certificate was issued, or that there was a breach of the development consent conditions. The court also found that the applicant had not shown that there was a serious question to be tried that the developer was causing polluted water to escape from the site. The court dismissed the applicant's application for urgent interlocutory orders and declined to make any finding on the question of costs.

Orders