Waterways Authority of New South Wales v Coal and Allied Operations Pty Limited

Coal and Allied Operations Pty Limited was a tenant of a property owned by the Waterways Authority of New South Wales. The dispute centred around a covenant in the lease requiring Coal and Allied to remove all structures and other works from the premises before the lease expired. In the event of default, the landlord could either retain the structures or remove them at the tenant's expense. Coal and Allied failed to remove the structures, prompting the Waterways Authority to seek a declaration that the covenant was enforceable and to obtain an order for specific performance. Coal and Allied argued that the landlord's right to retain or remove the structures was the sole remedy upon default, and that specific performance was not available due to the requirement of environmental permits for the removal of the structures.

The court was required to determine whether the landlord's right to retain or remove the structures was the exclusive remedy for the tenant's failure to remove them, and whether such failure constituted a breach of contract. The court also had to consider whether specific performance could be granted despite the need for environmental permits, and if so, at what stage the lawfulness of the act to be compelled must be assessed. Additionally, the court had to interpret specific provisions governing the development of Sydney Harbour, the Waverton Peninsula, and the Balls Head Coal Loader, and determine the definition of local government area boundaries. Finally, the court needed to interpret certain terms and phrases, such as "exclusive control", "relic", and "settlement", and consider whether inconsistencies in the legislation resulted in implied repeal.

The court held that the landlord's right to retain or remove the structures was not the sole remedy for the tenant's failure to remove them, and that such failure constituted a breach of contract. The court also found that specific performance could be granted, and that the lawfulness of the act to be compelled must be assessed at the time of the court's order, not at the time of performance. The court further held that the provisions governing development in the area were consistent and did not result in implied repeal. The court interpreted "exclusive control" to mean complete and sole control, "relic" to refer to a remnant or vestige of a past era, and "settlement" to mean a community or group of dwellings. The court's interpretation of these terms was consistent with the context in which they were used.

The court ordered that Coal and Allied must remove the structures from the premises within a specified timeframe and at its own expense, and that it must pay damages to the Waterways Authority for the breach of contract. The court also ordered that Coal and Allied must obtain the necessary environmental permits before removing the structures.