Logwon Pty Ltd v Warringah Shire Council

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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…

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Details
Case
[1993] NSWLEC 4
Decision Date

CaseChat Overview and Summary

Logwon Pty Ltd (the Applicant) sought to have two sets of consent orders made by the Land and Environment Court of New South Wales null and void and of no operative effect, or alternatively to have them set aside. The consent orders were made in proceedings brought by Warringah Shire Council (the Council) against the Applicant and concerned a parcel of land owned by the Applicant. The Applicant had been desirous of developing the land but had been unsuccessful in obtaining the requisite development consent. The original consent orders required the Applicant to carry out specified remedial works on the land in respect of works undertaken without the requisite consent of the Council. The Applicant claimed that it should be relieved from its obligations under the consent orders on the basis of mistake, failure of the Council to fully inform it of the effect of relevant conditions of development consent, and failure of the Council to inform the Court when making the consent orders of the effect of the conditions of the development consent. The Court held that the Applicant's claims were without merit. The Applicant had not demonstrated any grounds for avoiding or setting aside the consent orders. The application was dismissed with costs.

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