Mulwaree Shire Council v Marula Holdings Pty Limited

[1998] NSWLEC 96

Land and Environment Court

of New South Wales

CITATION:	Mulwaree Shire Council v. Marula Holdings Pty Limited [1998] NSWLEC 96
PARTIES:	APPLICANT Mulwaree Shire Council RESPONDENT Marula Holdings Pty Ltd
FILE NUMBER(S):	40105 of 1995
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	10/03/98, 17/03/98
DATE OF JUDGMENT:	03/10/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr W O'Rourke RESPONDENT Ms Finn (10.3.98) Mr Wilson (17.3.98)

JUDGMENT:

HIS HONOUR: In this matter I am at a bit of a disadvantage in not having before me the remarks of His Honour Mr Justice Talbot on the last occasion, although his comments have been referred to.

I accept that the Council concedes that the Company's operations currently are not causing environmental harm and that although the form of the evidence in exhibit M1 leaves something to be desired on the question of hardship, to which his Honour apparently also referred, I am concerned that there does not appear to have been appropriate attention to detail and expedition, such as it appears His Honour Mr Justice Cowdroy was expecting when he made the orders which he made on 23 July 1997.

Exhibit M1 is a letter apparently generated for the solicitor for the company as a result of discussions yesterday, but it bears the date, 28 February 1998. It is the only indication the court has of the company's attention to the shortcomings of its development application, which were pointed out to it in a letter to Mr Buchanan, from the Council, dated 20 February, which he appears to have received, and which exhibit M1 would indicate he is in the process of attending to, at least in part.

The whole matter appears to me to be in a very unsatisfactory situation, and I am not disposed to extend the period specified in order number three to 30 June.

If indeed the relevant missing documentation to accompany the development application will be delivered to the Council today as indicated by Mrs Finn's interpretation of exhibit M1, it may be possible for the Council in a short time to indicate at least how long it would take to make a decision on the application as so supplemented.

Accordingly, I will adjourn the matter to the Duty Judge list on Tuesday morning 17 March, one week from today, and extend the period in order three of the orders of 23 July until that day, when the court will have an opportunity to consider what occurs in the meantime. I will reserve the question of costs of today until I rule finally on the application on 17 March.

oOo

TYPEWRITTEN VERSION OF JUDGE'S NOTES FROM 17.3.1998 ATTACHED AS "ANNEXURE A"

MULWAREE SHIRE COUNCIL v MARULA

No.40105 of 1995 17 March 1998

The applicant Council opposes Notice of Motion brought by the company seeking an extension of a stay Order. I have taken advantage of the short break to re-read some of the material that influenced my decision on the last occasion to grant a short extension.

The matter has a long and not very meritorious history. The quarry operation is quite obviously a substantial one and there are some photographs in the file that have not been formally tendered before me but my attention was drawn to them on a previous occasion.

I have now had the opportunity to consider material assembled in Mr Buchanan's affidavit of 12.3.1998. In the short time available, I have not been able to assess what, if anything, Mr Buchanan or the company did in respect of the development application following the orders made by consent by His Honour Cowdroy AJ on 23 July 1997.

His judgment is in the file and sets out the relevant history. It would appear that the company has been aware, at least since 7 July 1994 when it was informed, if not aware prior to that date, that it needed development approval of some sort to extract gravel from this site.

The class 4 proceedings were begun on 13 June 1995 when no appropriate development application had been lodged. Some material in the file indicates that there was an agreement reached, presumably as a result of the mediation on 6 September 1995, that the development application was to be lodged by 1 April1996. It had still not been lodged when the matter came before Cowdroy AJ on 23 July 1997 but his judgment indicates that he was told it would be lodged by 26 September 1997.While the consent orders reflect only an undertaking between the parties, it seems to me to be most unfortunate that the Court was told on that occasion that that undertaking would be met. While there might not be a formal undertaking to the Court, there was an understanding given to the Court.

Those consent orders made by Cowdroy AJ allowed the time to run until 22 December 1997.

Talbot J dealt with the matter in December 1997. He extended the time to 31 January 1998. However, I have seen the Notice of Motion in the file which indicates the company was after an extension of time until 30 April 1998.

Unfortunately Talbot J's comments are not in the file but I accept what Mrs Finn said to me on the last occasion, namely that His Honour said that next time the Council would need to show harm and the company would need to show hardship.

The Council concedes that these operations, though substantial, are not causing any environmental harm. However, I think it is obvious from what has been put before me that at some stage there will be an extensive rehabilitation process required.

So far as the question of hardship is concerned, on the last occasion there was tendered a letter from Mr Buchanan to Mrs Finn dated 27.2.1998. On the last occasion there was some argument as to when that letter was actually sent. That argument seems to have been resolved in Mrs Finn's favour with Mr Buchanan admitting in his affidavit that he failed to change the date on his word processor and in fact the letter was sent on 9.3.1998.That affidavit now before the Court places on oath some of the material that Mr Buchanan included in that letter from which he asks the Court to draw an inference that if the company was forced to cease operations there would be significant hardship.

That hardship would be to the company and its 4 permanent employees and a number of local transport operators and others who appear to depend, at least in part, on the continued operation of this facility for their income. It also causes me some concern that it is asserted that the company does not have the protection of written contracts in respect of all its gainful operations.

Mr O'Rourke says that the company has deliberately flouted the requirements of this Court, and the undertakings that have been given, at least between the parties, and, as I have said, in the presence of the Court.

It was not until 13 February this year that the Development Application, sought in July 1994, was finally lodged.

It is common ground between the parties that that application was inadequate in many respects. Some of these were mentioned on the last occasion, when I was minded to favour the company by allowing a short extension of the time in order that it show its good faith and put the documentation in order.

Mr O'Rourke says the Council now feels that it is ready to place on exhibition the DA which will go on exhibition next week. It is very clear from the history of the matter and what was said on the last occasion, that there may still be some shortcomings in the documentation, particularly as far as the contemporaneous nature of the supporting material is concerned.There appears to have been some activity before the matter was listed before the court last week, but I am left with a very serious concern that the Court's involvement in the matter since July last year has not been regarded with any adequate seriousness by this company, and it troubles me that the Court is left in a position where, were I to refuse the Notice of Motion, the company may well cease to operate. While I am not convinced that this is the case, there is a suggestion that were that to occur, some jobs would be lost and, more importantly, if the company were to shut down, the Council would have enormous difficulty in ensuring that appropr

iate rehabilitation works at the site are carried out.

In the circumstances, but with very serious misgivings, I have decided to extend the time.

I think it is unreasonable that the Court should be requested to do this on regular occasions, but Mr O'Rourke has informed the Court this morning that the earliest a Council decision on this application could be made would be 28 May 1998.

I therefore propose to further suspend the operation of Order 3 of the Court's Orders dated 23.7.1997 until Monday 1 June 1998 and I direct that the matter be listed for mention before me at 9.30am on that date so the Court may be informed as to the outcome of the application to be considered the previous Thursday night, 28 May.

I order that the respondent company pay the costs of the applicant council in respect of this Notice of Motion and the matter is listed before me at 9.30am on Monday 1 June 1998 for mention.