Newcastle City Council v Leaway Pty Limited

[2004] NSWLEC 463

Land and Environment Court

of New South Wales

CITATION:	Newcastle City Council v Leaway Pty Limited & Anor [2004] NSWLEC 463 revised - 23/08/2004
PARTIES:	Newcastle City Council (Appl) Leaway Pty Limited (1R) Wayne Paddison (2R)
FILE NUMBER(S):	40284 of 2004
CORAM:	McClellan CJ
KEY ISSUES:	Injunctions and Declarations :- Development consent Use of premises Relocation of present facilities to alternate premises Suspension of restraining order
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	29 June 2004
EX TEMPORE JUDGMENT DATE :	06/29/2004
LEGAL REPRESENTATIVES:	J Maston/M Seymor (Appl) Sparke Helmore (Sol - Appl) S Berveling (1R, 2R) McDonald Johnson (Sol - 1R, 2R)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 29 JUNE 2004

40284/04 NEWCASTLE CITY COUNCIL v LEAWAY PTY LIMITED

JUDGMENT

1 HIS HONOUR: This matter came before me this morning on the application of the council seeking orders by way of declaration and injunctions in relation to the alleged illegal operation of premises at 55 Throsby Street, Wickham. The allegation is that the premises are being used as a waste management facility or waste transfer station without consent.

2 A consent was granted in September 2000 for the “storage, sorting and distribution of secondhand building materials” but the council alleges that the materials being stored and re-distributed from the site extend far beyond those which were contemplated by the consent granted.

3 When the matter was called this morning, the respondent indicated through its counsel its acceptance that orders should be made restraining the use of the property in the manner sought by the council. However, the respondent has apparently entered into negotiations to provide the present facilities on alternate premises which it believes are more appropriately zoned and located for the nature of the activity that it carries on.

4 I understand that it will be many months before a lease can be finalised in relation to those premises and any necessary consents obtained from the council.

5 In those circumstances, the respondent indicated that although it agreed to order 1 restraining the activity, it would seek a suspension of that order for a period of eight months to allow the relevant negotiations to take place.

6 The council opposed a stay for that period of time but indicated through its counsel that it would agree to the order being suspended until 12 August 2004. The council’s present position is that after that date, the use of the subject premises should be brought into conformity with the consent.

7 Counsel for the respondent conceded that there are problems of the type identified by the council which relate to the presence of vermin, interference with the amenity of the neighbouring properties by reason of vibration and noise, and also odour problems in the present operation of the subject premises. However, the respondent does not concede that the problems are to a level such as the council alleges.

8 It was also indicated to me that further steps are proposed to be taken to endeavour to eliminate the problems from the current operation.

9 Having regard to the concessions made, I indicated that my present thoughts were that it would be most unlikely that the respondent could persuade me that a stay for a period of eight months is acceptable. Having regard to the fact that the council conceded a stay for a period of now approximately six weeks, I indicated that it may be appropriate for the parties to have discussions about the course which should now be taken.

10 Those discussions took place and the parties have agreed that I should make the orders originally contemplated and suspend the injunction until 4 pm on 12 August 2004, granting liberty to either party to restore the matter to the list for the purpose of re-considering whether the order suspending order 1 should be varied.

11 It seems to me this is a suitable course. It allows for the activity to continue for a short time after which, and in accordance with, the current orders, any illegal activity on the site must cease. However, it also provides an opportunity for either party to approach the Court to have the order varied should the alleged problems continue and are of such a magnitude as to justify coming back to Court. It also provides the opportunity for the respondent to seek to persuade the Court at some future time that a further extension should be granted.

12 In saying what I have said this morning, I should not be understood as in any way indicating the fate of any such application, nor that I would encourage such an application to be made. However, it seems to me that the regime that the parties have adopted and consented to is a sensible one at this stage of these proceedings.

13 Accordingly, I make the orders in the short minutes which I have initialled and dated.

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