COFFS HARBOUR ENVIRONMENT CENTRE INCORPORATED v COFFS HARBOUR CITY COUNCIL and ANOR [1991] NSWCA 58

COFFS HARBOUR ENVIRONMENT CENTRE INCORPORATED vy COFFS HARBOUR CITY COUNCIL and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA 9 December 1991

[1991] NSWCA 58

Clarke JA This is an application for an injunction by the Coffs Harbour Environment Centre Incorporated in which it seeks to restrain the Coffs Harbour City Council in the State of New South Wales from carrying out any further works associated with the construction of the ocean outfall at Look-at-me-now Headland on the pieces of land which are specified in the Notice of Motion.

The situation is that earlier this year his Honour Mr Justice Bannon heard and determined an application by the claimant for declarations to the effect that the Council resolution pursuant to which works were carried out were void and of no effect. In the course of his judgment Mr Justice Bannon concluded that the proposed development on portion 237 of the Parish of Moonee was prohibited under zoning 6A of the Local Environment Plan which had been published in respect of the city of Coffs Harbour. For reasons which appeared in his Honour's judgment he nevertheless declined to grant the relief which the claimant sought.

An appeal from his Honour's judgment was heard as a matter of urgency last Friday. During the hearing of that appeal the claimant submitted that once it was concluded that the development on portion 237 was prohibited then it was entitled, almost as a matter of course, to the order sought. In this respect it was pointed out that there was no appeal by the opponents raising contrary considerations. At the end of the appeal the court sought from the opponents an indication whether they were prepared to desist from further works pending the handing down of the judgment prior to the end of the law term. Neither counsel was able to indicate to the court the precise nature of their client's attitude and neither was in a position to give any undertaking to the court. Subsequently no indication was given to the claimant that there was any intention on the part of the opponents to cease work pending the delivery of judgment.