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Rundle v Tweed Shire Council

Rundle v Tweed Shire Council

Case [1988] NSWLEC 108 26 February 1988

Environmental Impact Statement

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Public Interest

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Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Rundle v Tweed Shire Council & Anor [1988] NSWLEC 108

PARTIES:
APPLICANT
Dianne Rundle
RESPONDANT
Tweed Shire Council and the Far North Coast County Council

FILE NUMBER(S): 40241 of 1988

CORAM: Stein J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act

CASES CITED:

DATES OF HEARING: 27/11/1987, 26/02/1988

DATE OF JUDGMENT:
02/26/1988

LEGAL REPRESENTATIVES:
APPLICANT
Slater and Gordon
RESPONDENT
Mr. Colquhoun

JUDGMENT:

JUDGMENT ON NOTICE OF MOTION

HIS HONOUR: This is a Notice of Motion seeking an order that the respondents, the Tweed Shire Council and the Far North Coast County Council, be restrained from continuing to carry out or permit the spraying of herbicide 2,4-D on a certain property at Burrell Creek in the north of the State pending the hearing of an application made by Dianne Rundle, which application has been specially fixed to commence on 30 March 1988, a period of approximately four weeks' time.

It appears that spraying of the herbicide has, up to some time in November last year, occurred in order to eradicate Groundsell Bush, a noxious weed. The Court made an ex parte order on 24 November last until 27 November, restraining the respondents from spraying the herbicide on the subject property. On 27 November, the Notice of Motion was returnable before the Chief Judge and by consent it appears that the order I had made on 24 November was continued in the form of undertakings given by the respondents not to spray, (those undertakings being current to 3l January 1988).

The Chief Judge ordered an expedited hearing. Unfortunately, the Registrar was only able to allocate the 30 March, as an expedited hearing date. The file note from the Chief Judge of 27 November, noted the following:

Respondents 1 and 2 to give seven days' notice to applicant of intention to recommence spraying after that date, (that is 3l January), if the matter had not been heard by then.

Apart from the filing of a number of affidavits on both sides pursuant to Directions given by the Registrar, the only thing that has occurred in that time is that on 15 February, the applicant's solicitors wrote to the solicitors for each respondent, inter alia, saying that it is assumed that your client is prepared to extend the undertaking, (that is the undertaking that had expired on 3l January given to the Court not to resume spraying prior to the determination of the matter by the Court).

By way of response the solicitors for the Far North Coast County Council, which is a weed eradication Council, wrote to the applicant's solicitors saying quite clearly that she should not assume that their client was prepared to extend the undertaking given to the Court; that it expired on 3l January; and that they had given advice to their client that there was presently nothing to stop the spraying recommencing on the property. That letter was received on 24 February by the applicant's solicitors at around…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rundle v Tweed Shire Council

Details

AGLC: Rundle v Tweed Shire Council [1988] NSWLEC 108
Case: [1988] NSWLEC 108
Decision Date: 02/26/1988

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Rundle v Tweed Shire Council involved Dianne Rundle, the applicant, seeking an injunction to prevent the Tweed Shire Council and the Far North Coast County Council from spraying the herbicide 2,4-D on her property at Burrell Creek. The primary legal issue revolved around whether the herbicide spraying constituted an activity under the Environmental Planning and Assessment Act that required an Environmental Impact Statement and if the spraying posed significant environmental and health risks. Rundle argued that the herbicide was harmful to her health and that alternative, less harmful methods existed to control the Groundsell Bush, a noxious weed. The respondents contended that the herbicide was safe when used as directed and that halting the spraying would increase the cost and difficulty of weed eradication.

The Court found that there was a serious issue to be tried, given the extensive evidence and substantial disputed facts presented. In balancing the convenience, the Court considered the potential health risks to Rundle, the increased costs and environmental harm if the spraying was not resumed, and the discourtesy shown by the respondents in directly informing Rundle of the resumption of spraying without notifying her legal representatives. The Court ultimately decided that the balance of convenience favoured granting the injunction, preventing the respondents from resuming the herbicide spraying until the matter was heard. Additionally, the Court ordered the respondents to pay Rundle's costs of the Notice of Motion, as she was forced to seek the injunction due to the respondents' refusal to extend their undertaking not to spray. The Court refrained from making any rulings on the use of alternative herbicides, limiting the order to the herbicide 2,4-D.

Orders