Warringah Council v Ardel Limited - [2000] NSWLEC 7

Land and Environment Court

of New South Wales

CITATION: Warringah Council v Ardel Limited and Anor [2000] NSWLEC 7

PARTIES:
APPLICANT:
Warringah Council
RESPONDENTS:
Ardel Limited and Anor

FILE NUMBER(S): 40006 of 2000

CORAM: Talbot J

KEY ISSUES: Construction & Interpretation - Injunctions and Declarations - Jurisdiction :-
Construction and Interpretation:- meaning of statutory definition of "river" in Rivers and Foreshores Improvement Act 1948
Jurisdiction:- standing of class 4 proceedings where issue can be resolved in class 1
Injunctions and Declarations:- whether development can proceed without permit under Pt 3A Rivers and Foreshores Improvement Act 1948

LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948 Pt 3A

CASES CITED: Hassell Pty Ltd v Warringah Council (LEC unreported Nos 10427 of 1997; 10428 of 1997 19 March 1998);
Knezovic v Shire of Swan-Guildford (1967-1968) 118 CLR 468;
Genkem Pty Ltd v Environment Protection Authority (1994) 85 LGERA 197;
Electricity Commission of NSW v Environment Protection Authority (1992) 28 NSWLR 494;
Cox & Hazell Pty Ltd v Gidney [1981] 1 NSWLR 468;
Twist v Randwick Municipal Council (1976) 136 CLR 106

DATES OF HEARING: 19/01/2000, 20/01/2000, 21/01/2000

DATE OF JUDGMENT:
01/25/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr T Robertson (Barrister)
SOLICITORS:
Wilshire Webb
RESPONDENT:
Mr N Hemmings QC (Solicitor)
SOLICITORS:
Allen Allen & Hemsley

JUDGMENT:

IN THE LAND AND Matter No. 40006 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 25 January 2000

Warringah Council

Ardel Limited

Narel Civil Engineering Pty Ltd

Second Respondent

REASONS FOR JUDGMENT

1. The class 4 application in its final amended form seeks an order restraining the respondents from carrying out the construction of sediment/water quality ponds described in plans approved by the council on 12 May 1999 and the clearing of two lots proposed in the subdivision of land at Allambie Heights unless authorised to do so by a permit under Pt 3A of the Rivers and Foreshores Improvement Act 1948 (the Rivers Act) together with a declaration that before carrying out the works a permit under Pt 3A of the Rivers Act to authorise the said works must be obtained.

2. The matter first came before me for the hearing of an interlocutory application for an interim injunction but ultimately the parties agreed it would be preferable to finally determine the matter. Therefore, what was originally expected to take several hours, extended over three days, in effect occupying a day and a half of the Court’s time.

3. A convenient starting point for the history of the matter is the determination of a development application by this Court when Sheahan J (assisted by Assessor Brown, as he then was) granted a development consent for the subdivision of the land into 46 lots for the reasons explained in a judgment delivered in Matters No 10427 of 1997 and 10428 of 1997 on 19 March 1998.

4. Section 22B of the Rivers Act dictates that a person must not make an excavation on, in or under protected land or…

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.

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Details

Case: [2000] NSWLEC 7
Decision Date: 01/25/2000

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to decide whether Warringah Council could prevent Ardel Limited and Narel Civil Engineering Pty Ltd from constructing sediment/water quality ponds and clearing two lots in Allambie Heights, unless they obtained a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948. The council argued that the proposed works were in or adjacent to a river, and therefore required a permit. The respondents argued that the watercourse on the site did not meet the statutory definition of a river and that the council did not have standing to bring the application. The Court had to decide whether the watercourse on the site met the definition of a river in the Rivers Act, whether the council had standing to bring the application and whether the development could proceed without a permit. The Court found that the watercourse on the site did not meet the definition of a river because it had not been shown to be the natural channel for any stream that flowed in it. The Court also found that the council had standing to bring the application and that the development could proceed without a permit. The application was dismissed. The Court ordered that the exhibits may be returned.

Orders