NRMCA (NSW) Limited v Ready Crete Pty Limited

[1989] NSWLEC 208

Land and Environment Court

of New South Wales

CITATION:

NRMCA (NSW) Limited v Ready Crete Pty Limited & Anor [1989] NSWLEC 208

PARTIES:

APPLICANT
NRMCA (NSW) Limited

RESPONDENT
Ready Crete Pty Limited & Anor

FILE NUMBER(S):

40033 of 1989

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act

CASES CITED:

DATES OF HEARING:

DATE OF JUDGMENT:

06/22/1989

LEGAL REPRESENTATIVES:

APPLICANT
Mr. Wilson
RESPONDENT
Mr. Newport

JUDGMENT:

HIS HONOUR: This is a somewhat unusual matter. An application was filed in the Court on 14 February 1989 seeking certain declarations and injunctions relating to a concrete batching plant at York Road, Ingleburn. The application concerned a consent given by the Campbelltown City Council on 10 August 1988 to a plant at the address I have mentioned, to be run by the firstnamed respondent who, since the commencement of these proceedings, has changed its name from Detano Pty. Limited to Ready Crete Pty. Limited.

The original application sought a declaration essentially that the plant was 'designated' under the Environmental Planning and Assessment Act. It was said to be capable of manufacturing more than 20,000 tonnes per annum of concrete products, and was therefore a designated development under Schedule 3 to the EPA Act.

The applicant sought a further declaration that the consent of 10 August 1988 was null and void and of no effect, as well as consequent orders restraining the operations which have been taking place.

The matter was to proceed to a further and final hearing to-day, whereupon I was informed that on 20 June 1989 the second respondent Council granted a further development consent to Ready Crete Pty. Limited to use the premises as a concrete batching plant with a production capacity of 60,000 tonnes per annum on a 'designated' basis. I had not known prior to this moment that there had been a designated development application to the Council made last December, and that the Council had the matter under consideration or indeed had granted approval on 20 June. I am informed that this consent takes effect after 28 days from 20 June when I assume it was notified.

Discussion has ensued as to what should occur in relation to these proceedings in the light of that second consent.

Mr. Newport, on behalf of Ready Crete, in an effort no doubt to be frank with the Court and to cut down the time that these proceedings might otherwise take, has on instructions admitted essentially that the premises are 'designated', and that the existing plant has and is capable of manufacturing in excess of the tonnage set out in Schedule 3 to the EPA Act.

There are obviously large numbers of discretionary factors, not the least the consent given on 20 June, and the fact that the plant is, on the admission made by Mr. Newport, operating and producing in excess of 20,000 tonnes per annum, that the Court would not be convinced in the exercise of its discretion to make an injunction either to restrain the operation of the plant between now and the expiry of the 28 days when the consent takes effect, or to make such injunction and stay or suspend its operation for that period of time.

The latter course, it seems to me, would be almost a farce and of little or no utility. The former course, as I have said, would not be one that the Court, in the exercise of discretion would be minded to adopt, taking into consideration all the various discretionary factors which go into the melting pot.

However, there is, on reflection, it seems to me, some utility in making Declaration 1 sought in the application, that is a declaration that the plant is capable of manufacturing more than 20,000 tonnes per annum and is designated, and indeed Mr. Newport has again been frank and forthcoming, and conceded that he could not say that such a declaration would not be appropriate, bearing in mind the public interest aspect of these proceedings brought under Section 123 of the EPA Act.

It appears to me that it is appropriate and proper that I make the first declaration set out in the application. That of course leaves only the issue of costs of the proceedings and the reserved costs of a notice of motion of 20 June 1989 taken out by the applicant.

The applicant has succeeded in obtaining the prime declaration sought in the application, relying on the admission of the first respondent. It is clear that if the proceedings were tortuously heard over the next two or more days the evidence would establish that the applicant is entitled to succeed in the case. It is difficult to see that there are any exceptional circumstances involved to depart from the normal costs order, indeed Mr. Newport does not suggest that there necessarily are.

The Council also asks for its costs, Mr. Wilson on its behalf maintaining that it has been the innocent party. Whether this is true or not, I am not going to comment, but in any event it is clear that the Council had certain information before it in the statement of environmental effects from the first respondent when it gave the consent last August, and, on the face of that information, it may have been reasonable for Council to assume that the production would not be anywhere near the magic figure of 20,000 tonnes per annum.

It asks for costs against the first respondent, and Mr. Newport makes no submission in response. It seems to me that in the result of the proceedings, and my assessment of the probable course of the proceedings had they been heard to finality, the Council will have obtained its costs.

As to the Notice of Motion of 20 June, that motion has been partly disposed of yesterday in relation to strangers to the proceedings and, as between the applicant and the strangers, I made no order as to costs. The motion was stood over until this morning as between the applicant and the first respondent. But, in the light of what has happened, it has been unnecessary to proceed to hear the Notice of Motion any further.

In my opinion, at the point of time the motion was taken out and debated, the applicant was entitled to pursue its claim and to continue to garner the evidence necessary to prove its claim, the evidence which now is the subject of the admission made by the first respondent. It seems to me that such costs as there are between the applicant and the first respondent on that Notice of Motion of 20 June, ought to be paid by the first respondent.

I make a declaration in terms of paragraph 1 of the application. I order that the first respondent pay the applicant's and second respondent's costs of the application. The Notice of Motion of 20 June 1989 is dismissed, and the first respondent is ordered to pay the applicant's costs of the motion in so far as they concern it. The exhibits may be returned with the exception of Exhibit A, which is the subject consent and should remain with the papers.