South Sydney City Council v Tipfast Pty Limited

[2003] NSWLEC 293

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Land and Environment Court

of New South Wales

CITATION:	South Sydney City Council v Tipfast Pty Limited [2003] NSWLEC 293
PARTIES:	APPLICANT: South Sydney Council RESPONDENT: Tipfast Pty Limited
FILE NUMBER(S):	41037 of 2002
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- civil enforcement proceedings-concurrent class 1 proceedings-development consent granted-effect on class 4 proceedings.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 124
CASES CITED:	Tipfast Pty Ltd v South Sydney City Council (2002) 120LGERA 292
DATES OF HEARING:	30-31/07/03, 1/08/03, 08/08/03
DATE OF JUDGMENT:	11/14/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Hawkes, Solicitor SOLICITORS Pike Pike and Fenwick RESPONDENT: Mr C McEwen, Barrister SOLICITORS Spiegal and Associates

JUDGMENT:

IN THE LAND AND Matter No

. . 41037 of 2002

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

14 November 2003

SOUTH SYDNEY CITY COUNCIL

Applicant

v

TIPFAST PTY LIMITED

Respondent

JUDGMENT

1. By its class 4 application, filed on 17 December 2002, the Council claims injunctive relief against the Respondent’s use of land known a No 5A Canal Road, St Peters and of adjacent land forming a small part of the St Peters Tip.

2. The particular activities and development being conducted and used by the Respondent which the Council’s class 4 application sought to restrain are activities (screening and crushing of waste materials) which were additional activities to those authorised by the development consent granted by the Council in 1994 for the use of No 5A Canal Road as a “recyclers yard”.

3. According to the points of claim and points of defence filed, the principal issue requiring adjudication was the exercise of the Court’s discretion to grant or withhold relief in respect of a proven or admitted breach of the Environmental Planning and Assessment Act 1979 arising by virtue of the conducting of those activities without the requisite development consent, Pain J having held in June 2002 that the 1994 consent did not apply to those additional activities: see Tipfast Pty Ltd v South Sydney City Council (2002) 120LGERA 292.

4. However, the hearing of the proceeding was conducted by the parties upon the common assumption that the outcome would be substantially governed by the outcome of the concurrent class 1 proceedings (Matter No 11059 of 2002) involving an appeal by Tipfast against the Council’s refusal of development consent to an application made to the Council in October 2002. That proceeding was filed on 20 December 2002 just a few days after the Council had commenced the class 4 proceedings.

5. The outcome of the class 1 proceeding has been the grant by the Court of development consent subject to conditions (including deferred commencement conditions)—see my judgment delivered today (2003) NSWLEC 291

6. However, as noted in par 2 of my reasons for that judgment, there is not in the present case the typical overlap between the related concurrent class 1 and class 4 proceedings inasmuch as the development application to which the Court has now granted development consent does not apply to the adjacent portion of the St Peters Tip that is occupied by Tipfast as the lessee of the owner of the Tip, but apparently solely because the owner would not grant consent to its lessee making a development application in respect of that land. The use made of that land is not an active aspect of the Respondent’s operations conducted on No 5A Canal Road. Rather it is used for the storage in stockpiles of processed recycled materials pending their sale and disposal.

7. The relevant planning and development history of the use of No 5A Canal Road (including the activities undertaken by the Respondent since it became lessee from the Roads and Traffic Authority in 2001) are fully documented in my reasons for judgment in the class 1 proceedings and need not be here repeated.

8. In the light of the outcome in the concurrent class 1 proceedings, two issues require consideration:

(i) whether any relief should be granted in respect of the storage activity conducted on the adjacent land, which is not covered by the development consent; and

(ii) whether relief should be granted to ensure compliance with the regime of environmental management conditions imposed upon the grant of development consent.

9. In my opinion, some limited or qualified relief is justified in the circumstances of this case in the exercise of the broad judicial discretion conferred upon the Court by s 124 of the Environmental Planning and Assessment Act 1979.

10. However, the availability and operation of this relief should be suspended whilever the Respondent conducts its recycling operations in compliance with the environmental management conditions of the development consent.

11. Additionally, in respect of the adjacent land, its use, in the absence of any other authorisation (eg via a development consent) should be confined to the passive use of storing processed recycled materials pending their sale and disposal.

12. The planning and development history of the case (which is expounded in my judgment granting development consent) and the reasons for granting that development and in particular, my emphatic recognition of the imperativeness of the Respondent’s strict compliance with its environmental management conditions, combine in the present case, to justify my decision to grant the relief I have outlined.

13. Since the development consent I have granted is subject to some deferred commencement conditions and will therefore not become operative until they have been satisfied, it will be necessary for the Respondent’s continuing operations to be initially subjected to the environmental management regime imposed by Pain J in staying upon terms the enforcement order issued by the Council pursuant to Environmental Planning and Assessment Act, s 121B, and thereafter, following the development consent becoming operative, the environmental management regime imposed by the relevant conditions of the development consent.

14. Accordingly, I make the following orders—

1. The Respondent, its servants and agents be restrained from using land adjacent to lot 14 known as No 5A Canal Road, St Peters, in connection with the use as a recyclers yard made of No 5A Canal Road without first having obtained development consent required for such use in terms of the Environmental Planning and Assessment act 1979.

2. Order 1 be suspended upon the following conditions—

(i) compliance by the Respondent with the conditions of development consent granted by the Court on 14 November 2003 in proceedings No 11059 of 2002; and

(ii) pending that development consent becoming operative in terms of s 80(3) of that Act, compliance with the conditions imposed by Order 2 made by the Court on 5 July 2002 proceedings No 11023 of 2001 and a copy of which is annexed hereto and marked “A”; and

(iii) the use being confined to the passive storage in stockpiles of processed and recycled materials, pending their sale and disposal.

3. The Respondent, its servants and agents be restrained from using land known as lot 14 No 5A Canal Road, St Peters for the purposes of a recyclers yard otherwise than in accordance with any development consent granted under the Environmental Planning and Assessment Act 1979 authorising that use.

4. Order 3 be suspended upon the following conditions—

(i) compliance by the Respondent with the conditions of development consent granted by the Court on 14 November 2003 in proceedings No 11059 of 2002; and

(ii) pending that development consent becoming operative in terms of s 80(3) of that Act, compliance with the conditions imposed by Order 2 made by the Court on 5 July 2002 proceedings No 11023 of 2001 and a copy of which is annexed hereto and marked “A”.

5. Liberty to apply on 5 days notice for any purpose including any purposes relating to the suspension of Orders 1 and 3.

6. No order as to costs.