Moorebank Recyclers Pty Ltd v Liverpool City Council (No 4)

[2013] NSWLEC 129

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Moorebank Recyclers Pty Ltd v Liverpool City Council (No 4) [2013] NSWLEC 129

Hearing dates:

8 August 2013

Decision date:

08 August 2013

Jurisdiction:

Class 3

Before:

Biscoe J

Decision:

(1) By consent, Moorebank's undertaking in paragraph 5A(2) of the orders of 8 July 2013 is varied so that it reads as follows:

By 16 August 2013, it will lodge its amended Part 3A application or preferred project report. (2) By consent, the plan in annexure A to the orders of 8 July 2013 is substituted by the plan annexed hereto. (3) Tanlane's application to substitute the plan in annexure B to the orders of 8 July 2013 is stood over to 12 August 2013.

Catchwords:

JUDGMENTS AND ORDERS - variation of undertaking to the Court and slip rule amendments.

Cases Cited:

Moorebank Recyclers Pty Ltd v Liverpool City Council (No 3) [2013] NSWLEC 95

Category:

Consequential orders

Parties:

Moorebank Recyclers Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

COUNSEL:
J Lazarus (Applicant)
C Morton, solicitors (First Respondent)
T Hale (Second Respondent)
SOLICITORS:
Mark McDonald & Associates (Applicant)
Sparke Helmore (First Respondent)
Minter Ellison (Second Respondent)

File Number(s):

30141/13

EX TEMPORE Judgment

1. The proceedings have been listed this morning to address three application for amendments to the orders made on 8 July 2013 attached to my reasons for judgment of that date: Moorebank Recyclers Pty Ltd v Liverpool City Council (No 3) [2013] NSWLEC 95.

1. The first is an application by Moorebank to vary its undertaking in paragraph 5A(2) of the orders, which reads:

Moorebank gives an undertaking to the Court and the respondents that:

...

(2) Within 28 days, it will lodge its amended Part 3A application or preferred project report.

1. The application is to delete "Within 28 days" and to substitute "By 16 August 2013". This represents an extension of time of 11 days. In support, an affidavit of Neal Kennan sworn on 7 August 2013 has been read, which indicates that the progress of preparation of a preferred project report has been reasonable but that nevertheless it could not be finalised and submitted within the 28 days referred to in the undertaking, but that it will be finalised and submitted by 16 August 2013. By consent, I propose to vary the undertaking in the way sought by the applicant.

1. The second application is by Moorebank for a slip rule amendment to the plan which is part of annexure A to the orders made on 8 July 2013. That plan contains the notation: "Total area easement B: 5273m2". It has been ascertained that this is a mathematical error and that it should be 5354m2. By consent, I will order substitution of an annexure A plan showing the correct area.

1. The third application is by Tanlane for a slip rule amendment to substitute the plan in annexure B of the orders of 8 July 2013. It appears to be common ground as between Tanlane and Moorebank that the annexure B plan which the parties put forward at the hearing was not the final edition that should have been put forward. Those parties are now in discussion with a view to agreeing on the edition of the plan that should be substituted for the existing annexure B plan. They ask that this application be stood over to next Monday 12 June when I will be dealing with a costs issue between those parties. I agree.

1. Tanlane raises a further matter relating to the Moorebank undertaking in paragraph 5A(1) of the orders of 8 July 2013, which reads

5A(1) As soon as practicable, but in any event within 16 days of these orders, it will notify the respondents of which ramp design, either the plan at Annexure B to these orders (the "Ramps B Plan") or the plan at Annexure C to these orders (the "Ramps C Plan") (or any modification thereof, which modification will not be a significant variant of the Ramps B Plan or the Ramps C Plan, noting that moving the location of the up ramp or its connection point will be considered to be a significant variant) it seeks approval for;

1. Tanlane currently thinks that Moorebank is proposing a modification of the Ramps C plan which will be a significant variant and therefore contrary to the undertaking in paragraph 5A(1). Tanlane indicates that it will be seeking to reach an accommodation with Moorebank with a view to this issue going away but that, if that does not occur, it may seek injunctive relief.

1. The orders of the Court are as follows:

(1)   By consent, Moorebank's undertaking in paragraph 5A(2) of the orders of 8 July 2013 is varied so that it reads as follows:

By 16 August 2013, it will lodge its amended Part 3A application or preferred project report.

(2)   By consent, the plan in annexure A to the orders of 8 July 2013 is substituted by the plan annexed hereto.

(3)   Tanlane's application to substitute the plan in annexure B to the orders of 8 July 2013 is stood over to 12 August 2013.

ANNEXURE

Amendments

18 September 2013 - typographical error in second sentence.

Amended paragraphs: 5

Decision last updated: 18 September 2013