Mid-Coast Council v Tea Garden Farms Pty Ltd (formerly known as LDF Enterprise Pty Ltd); Tea Garden Farms Pty Ltd (formerly known as LDF Enterprise Pty Ltd) v Mid-Coast Council

[2017] NSWLEC 136

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mid-Coast Council v Tea Garden Farms Pty Ltd (formerly known as LDF Enterprise Pty Ltd); Tea Garden Farms Pty Ltd (formerly known as LDF Enterprise Pty Ltd) v Mid-Coast Council [2017] NSWLEC 136
Hearing dates:	25 September 2017
Date of orders:	25 September 2017
Decision date:	25 September 2017
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders annexed after [12] and [13]
Catchwords:	CONSENT ORDERS – leave granted to change name of party – proposed consent orders finalise both Class 1 and Class 4 proceedings orders appropriate – orders made
Legislation Cited:	Civil Procedure Act 2005 Corporations Act 2001 (Cwth), s 124A Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	362174 of 2016 Mid-Coast Council (Applicant) Tea Garden Farms Pty Ltd (formerly known as LDF Enterprise Pty Ltd) (Respondent)   365386 of 2016 Tea Garden Farms Pty Ltd (formerly known as LDF Enterprise Pty Ltd) (Applicant) Mid-Coast Council (Respondent)
Representation:	Counsel: 362174 of 2016 Ms H Irish, barrister (Applicant) Mr G Long, solicitor (Respondent) 365386 of 2016 Mr G Long, solicitor (Applicant) Ms H Irish, barrister (Respondent)   Solicitors: 362174 of 2016 LG Legal (Applicant) Long Legal (Respondent) 365386 of 2016 Long Legal (Applicant) LG Legal (Respondent)
File Number(s):	362147 and 365386 of 2016
Publication restriction:	No

EXTEMPORE JUDGMENT

1. HIS HONOUR: In both Matter No 2016/365386 – being Class 1 proceedings involving LDF Enterprise Pty Ltd (the Company) and Mid-Coast Council (the Council), and Matter No 2016/362174 – being Class 4 proceedings commenced by the Council against LDF Enterprise Pty Ltd, by, in the first instance, Notice of Motion. In the second instance, by my granting of leave to amend pursuant to s 63 of the Civil Procedure Act2005 as the name LDF Enterprise Pty Ltd has been changed to Tea Garden Farms Pty Ltd in each proceedings.

2. The parties have reached agreement between themselves that both the Class 1 proceedings and the Class 4 proceedings can be settled by orders to be made by the Court by consent.

3. I turn, first, to the disposal of the Class 1 proceedings in which Tea Garden Farms Pty Ltd is now the Applicant. The order proposed to be made by consent is that the appeal is dismissed with two notations:

1. First, that there is to be no order for the payment of costs; and

2. Second, that the Council's revocation of its order dated 16 November 2016, given under s 121B, being order 19 in the Table of Orders pursuant to that section of the Environmental Planning and Assessment Act1979 (the EP&A Act) for the directors of what is now Tea Garden Farms Pty Ltd, is effective upon the making of my order dismissing the proceedings appended to the Consent Orders executed by the representatives of the parties and handed up to me is a letter from Ms Lisa Schiff, Director of Planning and Natural Systems of Mid‑Coast Council, giving to me the notification that upon the order of dismissal becoming effective, then the Council's notice of revocation of its order will also become effective.

4. I am satisfied, on assurance from Ms Irish, counsel for the Council, that Ms Schiff has the appropriate delegation to give that undertaking and to revoke that order. I therefore make, by consent, the order that the Class 1 proceedings are dismissed on the understanding of the two notations to which I have referred. The Class 4 proceedings are of greater complexity. I do not propose to recite the details of the proposed terms of the orders to be made in those proceedings; they will, however, be appended as an electronic annexure to the decision that I am presently giving.

5. The orders require a series of identified works to be derived from identified processes to be carried out on, or refrained from being carried out on (the orders also embody restraining orders for) allotments in the vicinity of Fame Cove or North Arm Cove within the Council's local government area - they are Lots 100, 101, 103 and 104 in Deposited Plan 1049845 and Lot 2 in Deposited Plan 1076610. Effectively, they require the rectification of a variety of clearing or other activities that have been undertaken on the site, either in breach of a development consent granted by the Council or without development consent being granted by the Council.

6. It is unnecessary for me to set out the detail of the various activities, and the basis upon which they are to be derived. They will all be apparent from the terms of the orders that are to be annexed to this decision.

7. During the course of Ms Irish taking me through the terms of the orders and how they would interrelate, including the opportunities for the Company in the future to seek to modify the impact of the orders either by obtaining fresh development consents or obtaining modifications to existing or future development consents. I suggested that there be three potential amendments to those orders to clarify them.

8. Ms Irish, with the concurrence of Mr Long, solicitor for the Company, has indicated to me that the first two of those proposed alterations are unnecessary and, as a consequence, they are not to be made to the orders. However, order 10 places, amongst other things, an obligation on the Company to notify the General Manager of the Council, by notice in writing of changes in various aspects of the Company's status - the words, as presently incorporated in the orders, would have confined that to the Company's name and registered address.

9. However, the material upon which it is based, which has been obtained by the Council and handed up to me by Ms Irish (as an aide memoire), and which appears as Annexure B to the affidavit of Francis Wong of 21 September 2017 (read on the motion to change the name of the Respondent in the Class 1 proceedings), makes it clear that a wider range of information is necessary and appropriate. The parties have agreed that the words "Current organisation details”, contained in proposed order 10A, should be deleted and that instead of that should be inserted "Information derived from the Australian Securities and Investment Commission's database under s 124A of the Corporations Act2001".

10. I am satisfied that that will provide an appropriate basis, as Ms Irish and Mr Long have agreed, that the Council will be kept informed of all relevant organisational or structural details, including directors and shareholders of the Company.

11. I am satisfied that the proposed consent orders are entirely responsive to the Amended Points of Claim dated 23 March 2017, which were amended on 24 March 2017 by leave, are appropriate. I also am satisfied, having had regard to the order made on an interlocutory basis by Sheahan J on 2 December 2016, that order 1 of the proposed consent orders (dissolving the order made by his Honour in 2016) is appropriate, as there is a proper regime put in place by orders 2 to 10 and the annexures to the orders.

12. Therefore, in proceedings 2016/362174, pursuant to s 124 of the EP&A Act, I make the orders contained in orders 1 to 13, as handed to me, and with the amendment to which I have adverted in order 10A.

13. I also note the matters contained in (a) to (c) after the conclusion of proposed order 13.

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365386 of 2016 - Tea Garden Farms Pty Ltd v Mid-Coast Council - CO - 25Sep17 (633 KB, pdf)

362174 of 2016 - Mid-Coast Council v Tea Garden Farms Pty Ltd - CO - 28Sep17 (5.60 MB, pdf)

Decision last updated: 09 October 2017