Warringah Council v Ardel Limited and Anor

Land and Environment Court (NSW)|1998-03-19|Before: Talbot J, Sheahan J

The applicant has not discharged the onus of proof to show on the balance of probabilities that the proposed works are in or adjacent to a river within the meaning of that term used for the purposes of Pt 3A of the Rivers Act.

In the circumstances, the application must be dismissed.

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50. Mr Hemmings' argument is really one regarding the most convenient forum to deal with the questions of law and merit that arise.

51. Having regard to strong views expressed by the majority of the Court of Appeal in Cox & Hazell, I do not think the question of the most convenient forum, forum conveniens or exclusion of this Court's jurisdiction in class 4, can arise. In any event it is appropriate for such a submission to be made only in support of a preliminary application for the proceedings to be stayed or transferred to another jurisdiction. That was not done.

52. I agree with Mr Robertson that Cox & Hazell is direct authority for the council's rights to raise the issues it does in these proceedings. It is not a direct challenge to the decision of the Department in any event. The Department has not been made a party and is not, in my opinion, necessarily an essential party who ought to have joined to ensure that all matters in dispute may be effectually and finally determined. Arguably the Department has never made a relevant decision to ground an appeal.

53. Furthermore, I have heard all of the evidence, apart from evidence limited to discretion, and comprehensive submissions have been made by both parties. It is appropriate and proper therefore that the Court decide, subject to the exercise of the Court's discretion, whether, in the circumstances, the applicant is entitled to the relief it seeks against the respondents.

54. The applicant has not discharged the onus of proof to show on the balance of probabilities that the proposed works are in or adjacent to a river within the meaning of that term used for the purposes of Pt 3A of the Rivers Act.

55. In the circumstances, the application must be dismissed.

Planning and Assessment Act 1979

Local Government Act 1919

Foreshores Improvement Act 1948

CITATION : Warringah Council v Ardel Limited and Anor [2000] NSWLEC 7 APPLICANT: Warringah Council PARTIES : RESPONDENTS: Ardel Limited and Anor FILE NUMBER(S) : 40006 of 2000 CORAM: Talbot J Construction & Interpretation - Injunctions and Declarations - Jurisdiction :- KEY ISSUES: 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 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; CASES CITED: 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

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