Blacktown City Council v Wilkie and Ors

CITATION : Blacktown City Council v Wilkie and Ors [2002] NSWLEC 119 APPLICANT Blacktown City Council PARTIES : RESPONDENTS Wilkie and Ors FILE NUMBER(S) : 40025 of 2001 CORAM: Pearlman J KEY ISSUES: Practice and Procedure :- slip rule - omission of a time for compliance with orders - power of Court to vary order - current appeal to Court of Appeal - stay LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 1996 pt 10 r 7, pt 15 r 6(1) Akron Securities Ltd v Iliffe and Ors (No 3) (Mason P, NSWCA, 26 September 1997, unreported); Australian Agriculture Co and Ors v Federation Engine-Drivers and Firemen's Assoc of Australasia (1913) 17 CLR 261; Blacktown City Council v Wilkie and Ors [2001] NSWLEC 269; Clifton Securities Ltd v Huntley and Ors (1948) 2 All ER 283; CASES CITED: DJL v The Central Authority (2000) 201 CLR 226; Ervin Mahrer and Partners v Strathfield Council [2002] NSWLEC 97; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; Multistar Pty Ltd v Minister for Urban Affairs and Planning and Anor (2001) 114 LGERA 106; Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438 DATES OF HEARING: 03/07/2002, 12/07/2002 DATE OF JUDGMENT: 07/17/2002

5. The orders that were made on 6 December 2001 related to premises known as part lot 2 in DP 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park ("the site"). The Court found that a large amount of waste material had been deposited upon the site in breach of the Environmental Planning and Assessment Act 1979 (see Blacktown City Council v Wilkie and Ors [2001] NSWLEC 269, unreported, to which I will refer as "the substantive judgment"). It is unnecessary to set out the full terms of all the orders that were made. Suffice it to say that the Court made declarations of breach by the first respondent, and by the second and third respondents, and made orders restraining all three respondents from using the site for the purpose of a tip or recycling yard or like use. In addition, I found that the primary responsibility for the breach was that of the second and third respondents, and that the first respondent had a secondary responsibility (see pars 72, 73 and 75 of the substantive judgment). The second and third respondents were ordered to remove the waste by the expiration of five weeks from the date of the order (order 5).

18. I do not embark upon a consideration of the applicability of the other suggested sources of power (pt 15 r 6(3) or pt 15 r 9(e)) or a consideration of whether or not this Court possesses an implied or incidental power to make the variation sought, having regard to such cases as Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 and DJL v The Central Authority (2000) 201 CLR 226 (and see, in this Court, Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438, Multistar Pty Ltd v Minister for Urban Affairs and Planning and Anor (2001) 114 LGERA 106, and Ervin Mahrer and Partners v Strathfield Council [2002] NSWLEC 97, Bignold J, unreported).

(1913) 17 CLR 261

(2000) 201 CLR 226

(1993) 33 NSWLR 13

(2001) 114 LGERA 106

(2001) 112 LGERA 438