Logwon Pty Ltd v Warringah Shire Council

Land and Environment Court

of New South Wales

CITATION:

Logwon Pty Ltd v. Warringah Shire Council [1993] NSWLEC 4

PARTIES:

APPLICANT
Logwon Pty Ltd

RESPONDENT
Warringah Shire Council

RESPONDENTS

FILE NUMBER(S):

40093 of 1991

CORAM:

Bignold J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

(Permanent Trustee Co (Canberra) Ltd v. Stocks and Holdings (Canberra) Pty Ltd (1976);
Harvey v. Phillips (1956) ;
Spies v. Commonwealth Bank of Australia (1991);
High Court in Taylor v. Johnson (1983);
Tommey v. Tommey [1982] ;
Livesey v. Jenkins [1985]

DATES OF HEARING:

DATE OF JUDGMENT:

04/30/1993

LEGAL REPRESENTATIVES:

APPLICANT
Mr W. Hodgekiss (Barr)
Mr D. Balog of Balog D.C. & Associates

RESPONDENT
Mr M.C. Craig (QC)
Mr D. Wilson (Barr)
Mr Neil Howie of Wilshire Webb Solicitors

JUDGMENT:

A. INTRODUCTION

By its amended Class 4 application Logwon Pty Ltd ("the Company") seeks orders that two sets of consent orders made by this Court on 16 August 1988 and 24 April 1990 respectively in proceedings No 40083 of 1988 brought against the Company by the Warringah Shire Council ("the Council") be declared null and void and of no operative effect or alternatively that they be set aside.

B. THE COURT'S CONSENT ORDERS

The aforesaid consent orders relate to a parcel of land, comprising 6.2 hectares and being Lot X Deposited Plan 395049 and Lot B Deposited Plant 380266 situate at Cabbage Tree Road, Bayview ("the subject land") which the Company acquired in August 1986. Except for a dwelling-house the subject land is not developed although the Company has been desirous of developing it by a rural/residential subdivision since acquiring it, but has been unsuccessful in obtaining the requisite development consent.

The original consent orders required the Company to carry out specified remedial works to the subject land in respect of works undertaken without the requisite consent of the Council under the Environmental Planning and Assessment Act 1979 ("the EP&A Act") on the land in anticipation of, or preparatory to, the subdivision of the land into a number of rural/residential lots. The remedial works which were required to be carried out within 120 days (Order 2) involved extensive earthworks, drainage works, soil erosion and sediment control works and revegetation remedial works. (A number of the required works related to an internal access track that existed on a right-of-way traversing the subject land from Cabbage Tree Road which right-of-way is appurtenant to adjoining land which was then under construction as an approved retirement village ("the ROW"). The present case essentially concerns the relationship between the latter land and the subject land and more particularly the relationship between works required

to be undertaken on the access road located on the ROW - such works being required on the one hand by the Company pursuant to the Court orders and on the other by the developer of the retirement village pursuant to conditions of development consent.)

The original consent orders in terms, required all remedial works to be carried out "to the satisfaction…