Baulkham Hills Shire Council v Brad Forrester And Another [2004] NSWLEC 587

Land and Environment Court of New South Wales

CITATION : Baulkham Hills Shire Council v Brad Forrester And Another [2004] NSWLEC 587 APPLICANT Baulkham Hills Shire Council

PARTIES : FIRST RESPONDENT Brad Forrester

SECOND RESPONDENT BHA Properties Pty Limited FILE NUMBER(S) : 40241 of 1998 CORAM: Talbot J KEY ISSUES: Costs :- contempt notice discontinued - original orders not complied with - impossibility of performance. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: EPA v Alkem Drums [2000] NSWCCA 416, unreported; Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia: Ex Parte Lai Qin (1997) 186 CLR 622 DATES OF HEARING: 07/10/04 DATE OF JUDGMENT: 10/22/2004

APPLICANT Mr M A J Daley (Barrister) SOLICITORS Coleman & Greig LEGAL REPRESENTATIVES: RESPONDENTS Mr T G Howard (Barrister) SOLICITORS Massey Bailey

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

22 October 2004

40241 of 1998 Baulkham Hills Shire Council v Brad Forrester and BHA Properties Pty Limited

JUDGMENT 1 Talbot J: These proceedings have a long history. Initially, relief was sought by Baulkham Hills Shire Council ("the Council") against four respondents in relation to an alleged illegal placing of fill on land known as 197 Pitt Town Road, Kenthurst ("the land"). 2 By Notice of Motion dated 1 August 2002 the applicant moved the Court for a declaration that the first and second respondents were guilty of contempt of Court for failure to comply with Order 3 of Consent Orders made by the Court on 13 March 2000 and that the first and second respondents be punished accordingly. The Council is seeking an order that the first and second respondent pay its costs in respect of the Notice of Motion. 3 On 13 March 2000, by consent of the applicant and first and second respondent, the Court declared that the depositing of fill onto the land was in breach of the Environmental Planning and Assessment Act 1979 ("the EP&A Act). Consequential orders were made against the first and second respondents by consent, including Order 3 as follows:-