TAGGETT v THE COUNCIL OF THE SHIRE OF TWEED [1993] NSWCA 260

TAGGETT v THE COUNCIL OF THE SHIRE OF TWEED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJ 27 and 28 April 1993, 3 November 1993 [1993] NSWCA 260

ENVIRONMENTAL PLANNING — existing use rights — incidental and ancillary uses. ENVIRONMENTAL PLANNING — existing use of drain in wetlands — illegal widening without consent — evidentiary presumption against wrongdoer. ENVIRONMENTAL PLANNING — mandatory injunction — _ certainty. INJUNCTION — environmental planning — mandatory injunction — certainty. EVIDENCE — presumption against wrongdoer.

The appellants purchased rural property near Pottsville south of Murwillumbah in May 1985 which became subject to State Environment Planning Policy No 14 - Coastal Wetlands (SEPP 14) in December 1985. CL7 of SEPP 14 prohibited the clearing, draining or filling of the wetlands without consent. After the commencement of SEPP 14 the appellants undertook extensive clearing and draining work within the wetlands for agricultural and grazing purposes. The Council commenced Class 4 proceedings in the Land and Environment Court. The trial Judge rejected the appellants' claim that they had existing use rights for purposes other than cattle grazing and held that the timber clearing and drain widening contravened SEPP 14. After the trial Judge had delivered reasons for judgment and adjourned the proceedings for argument on costs and the form of the orders, the Council applied for additional declarations in relation to further drainage work subsequently undertaken by the appellants in another part of their property. The trial Judge granted such declarations.

Held:

(1) The appellants had been denied procedural fairness in relation to the additional declarations as the existing use rights in respect of the BLM drain had not been fully litigated;