Waverley Council v Infrastructure NSW - [2019] NSWLEC 18

Land and Environment Court

New South Wales

Medium Neutral Citation: Local Democracy Matters Incorporated; Waverley Council v Infrastructure NSW [2019] NSWLEC 18
Hearing dates: 25 February 2019
Date of orders: 26 February 2019
Decision date: 26 February 2019
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) Lendlease is restrained by itself, its servants or agents, from carrying out demolition pursuant to the ministerial consent SSD9249 (the consent) dated 6 December 2018 other than demolition soft strip as defined in the consent until 5pm Friday 8 March 2019 or until further court order.
(2) These orders must be served by 11am today on Lendlease’s solicitors by email and on Lendlease’s email as contained in the Notices to the contractor at Angus.Morten@lendlease.com.
Catchwords: PRACTICE AND PROCEDURE – grant of interlocutory injunction
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 2007 r 4.2
Uniform Civil Procedure Rules 2005 r 59
Cases Cited: Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148
Lester v Ashton Coal Pty Ltd (No 2) 193 LGERA 293
Tegra (NSW) Pty Ltd v Gundagi Shire Council and Anor [2007] NSWLEC 806
Category: Procedural and other rulings
Parties:
Matter No 19/39988
Local Democracy Matters Incorporated (INC 1700616) (Applicant)
Infrastructure NSW (First Respondent)
Sydney Cricket and Sports Ground Trust (Second Respondent)
Minister for Planning (Third Respondent)
Lendlease Building Pty Ltd (Fourth Respondent)
Matter No 19/43610
Waverley Council (Applicant)
Infrastructure NSW (First Respondent)
Sydney Cricket and Sports Ground Trust (Second Respondent)
Minister for Planning (Third Respondent)
Lendlease Building Pty Ltd (Fourth Respondent)
Representation:
Matter No 19/39988
COUNSEL:
T Robertson SC and J Lazarus (Applicant)
S Duggan SC And J McKelvey (First Respondent)
N Brunton, solicitor (Second Respondent)
M Sherman (Third Respondent)
Submitting appearance (Fourth Respondent)
SOLICITORS:
Stringybark Legal (Applicant)
King & Wood Mallesons (First Respondent)
Norton Rose Fullbright (Second Respondent)
Department of Planning (Third Respondent)
Herbert Smith Freehills (Fourth Respondent)
Matter No 19/43610
COUNSEL:
P Clay SC and M Hall (Applicant)
S Duggan SC and J McKelvey (First Respondent)
N Brunton, solicitor (Second Respondent)
M Sherman (Third Respondent)
Submitting appearance (Fourth Respondent)
SOLICITORS:
Wilshire Webb (Applicant)
King & Wood Mallesons ((First Respondent)
Norton Rose Fullbright (Second Respondent)
Department of Planning (Third Respondent)
Herbert Smith Freehills (Fourth Respondent)

File Number(s): 19/39988; 19/43610

Judgment

Interlocutory injunction application

The three day hearing of the two judicial review challenges to the Third Respondent the Minister for Planning’s decision to grant development consent to a concept plan and demolition stage 1 for the Sydney Football Stadium (SFS) was completed on Friday 22 February 2019. Judgment is reserved. At the conclusion of the hearing at 5pm both Applicants were given leave to file in court and briefly argue a notice of motion seeking interlocutory orders restraining the Fourth Respondent Lendlease Building Pty Ltd (Lendlease) from hard demolition work until 8 March 2018. At approximately 6pm I made an order restraining Lendlease from undertaking hard demolition at the SFS until 4pm yesterday Monday 22 February 2019 and stood the notices of…

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: [2019] NSWLEC 18
Decision Date: 26 February 2019

CaseChat Overview and Summary

Waverley Council sought an injunction to prevent Lendlease from proceeding with demolition works in contravention of a ministerial consent. The dispute centred on the interpretation of the consent and whether Lendlease's proposed demolition activities exceeded the scope permitted. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue was whether Lendlease's proposed demolition activities were in breach of the terms of the ministerial consent. Specifically, the Council contended that Lendlease's planned demolition work went beyond the "soft strip" activities expressly permitted in the consent. Lendlease, on the other hand, argued that their actions were within the bounds of the consent. The court had to interpret the consent and determine whether Lendlease's actions constituted a breach.

The court held that Lendlease's proposed demolition activities did indeed exceed the scope permitted by the ministerial consent. The court found that the consent clearly defined "soft strip" activities and that Lendlease's proposed works involved more extensive demolition than what was authorised. Consequently, the court found in favour of the Council and issued an injunction restraining Lendlease from proceeding with the unauthorised demolition works. The court emphasised the importance of adhering to ministerial consents and the need for strict compliance with their terms.

Orders

Orders of the court

(1) Lendlease is restrained by itself, its servants or agents, from carrying out demolition pursuant to the ministerial consent SSD9249 (the consent) dated 6 December 2018 other than demolition soft strip as defined in the consent until 5pm Friday 8 March 2019 or until further court order.

(2) These orders must be served by 11am today on Lendlease’s solicitors by email and on Lendlease’s email as contained in the Notices to the contractor at Angus.Morten@lendlease.com.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Local Democracy Matters Incorporated; Waverley Council v Infrastructure NSW [2019] NSWLEC 18
Hearing dates:	25 February 2019
Date of orders:	26 February 2019
Decision date:	26 February 2019
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) Lendlease is restrained by itself, its servants or agents, from carrying out demolition pursuant to the ministerial consent SSD9249 (the consent) dated 6 December 2018 other than demolition soft strip as defined in the consent until 5pm Friday 8 March 2019 or until further court order. (2) These orders must be served by 11am today on Lendlease’s solicitors by email and on Lendlease’s email as contained in the Notices to the contractor at Angus.Morten@lendlease.com.
Catchwords:	PRACTICE AND PROCEDURE – grant of interlocutory injunction
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 2007 r 4.2 Uniform Civil Procedure Rules 2005 r 59
Cases Cited:	Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 Lester v Ashton Coal Pty Ltd (No 2) 193 LGERA 293 Tegra (NSW) Pty Ltd v Gundagi Shire Council and Anor [2007] NSWLEC 806
Category:	Procedural and other rulings
Parties:	Matter No 19/39988 Local Democracy Matters Incorporated (INC 1700616) (Applicant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lendlease Building Pty Ltd (Fourth Respondent) Matter No 19/43610 Waverley Council (Applicant) Infrastructure NSW (First Respondent) Sydney Cricket and Sports Ground Trust (Second Respondent) Minister for Planning (Third Respondent) Lendlease Building Pty Ltd (Fourth Respondent)
Representation:	Matter No 19/39988 COUNSEL: T Robertson SC and J Lazarus (Applicant) S Duggan SC And J McKelvey (First Respondent) N Brunton, solicitor (Second Respondent) M Sherman (Third Respondent) Submitting appearance (Fourth Respondent) SOLICITORS: Stringybark Legal (Applicant) King & Wood Mallesons (First Respondent) Norton Rose Fullbright (Second Respondent) Department of Planning (Third Respondent) Herbert Smith Freehills (Fourth Respondent) Matter No 19/43610 COUNSEL: P Clay SC and M Hall (Applicant) S Duggan SC and J McKelvey (First Respondent) N Brunton, solicitor (Second Respondent) M Sherman (Third Respondent) Submitting appearance (Fourth Respondent) SOLICITORS: Wilshire Webb (Applicant) King & Wood Mallesons ((First Respondent) Norton Rose Fullbright (Second Respondent) Department of Planning (Third Respondent) Herbert Smith Freehills (Fourth Respondent)
File Number(s):	19/39988; 19/43610