Baulkham Hills Shire Council v O'Donnell [1988] NSWLEC 123

Land and Environment Court of New South Wales

CITATION : Baulkham Hills Shire Council v O'Donnell [1988] NSWLEC 123 APPLICANT O'Donnell PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 40152 of 1985 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment (Amendment) Act 1985 CASES CITED: DATES OF HEARING: 22/05/1987, 27/05/1987 DATE OF JUDGMENT: 06/01/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 22nd May, 1987 I delivered judgment dismissing class 4 proceedings in which the Applicant had sought to restrain the Respondent from using land owned by her at Maraylya off Cattai Ridge Road for the purpose of an extractive industry or excavating the land for the purpose of removing therefrom sand, soil or similar material, without the Applicant's consent first had and obtained. (The judgment is now reported (in part) in 62 LGRA 7).

That judgment deliberately did not dispose of all issues raised in those proceedings. Having concluded that the Respondent had succeeded in its defence based upon s.109 of the Environmental Planning and Assessment Act 1979 and that in consequence "the application as originally framed must be dismissed" (p.26) I immediately stated the nature of the potentially outstanding matter as follows (p.26):-

"The only outstanding question is whether I should grant any partial relief based upon my conclusion as to the true effect on these proceedings of s.109(2). Although I have construed that subsection in a manner that may have some effect of limiting the respondent's use of the subject land for the purposes of extracting sand and soil for sale I do not think I should, at this stage, make any orders in relation to s.109(2) or its legal consequences in these proceedings. The question has not been sufficiently explored in these proceedings. I would contemplate that the parties will consider what I have decided in relation to s.109(2) and seek to reach some agreement as to how that decision is to be applied to the current use of the subject land. This may not be an easy task. I reserve to the applicant liberty to apply in the event of its seeking any orders in this behalf.