Tweed Shire Council v Wintour [1988] NSWLEC 146

Land and Environment Court of New South Wales

CITATION : Tweed Shire Council v Wintour [1988] NSWLEC 146 APPLICANT Tweed Shire Council PARTIES : RESPONDENT Neville Henry Wintour FILE NUMBER(S) : 40061 of 1988 CORAM: Holland J KEY ISSUES: :- LEGISLATION CITED: Tweed Local Environmental Paln 1987 Environmental Planning and Assessment Act 1979 Wintour v. Tweed Shire Council (1987); CASES CITED: Parisienne Basket Shoes Pty Ltd v Whyte (1938); Caltex Oil (Australia) Pty Ltd v Feenan (1980); Bailey v Marinoff (1971) DATES OF HEARING: 07/08/85, 22/03/88, 08/10/88 DATE OF JUDGMENT: 11/22/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The respondent, Neville Henry Wintour, owns a parcel of land at Hastings Point in the Shire of Tweed being Lot 156 in D.P.628026. The land has frontages at the South and East to Cudgara Creek and Christies Creek.

In 1981 Mr. Wintour obtained conditional approval to subdivide part of Lot 156. It was flood prone land. One of the conditions required the level of the land to be raised by filling it. Mr. Wintour wants to obtain the fill by dredging and pumping it to a suitable part of the site for stockpiling and then spreading it to achieve the stipulated level. He claims there is no other viable way to do it, viable in the sense of making a profit out of the proposed subdivision.

Mr. Wintour has over the years made a number of attempts to obtain his fill by dredging but each time the applicant, the Tweed Shire Council, has stepped in claiming that his dredging was unauthorised and unlawful. Mr. Wintour in litigation going back to 1982 has fought the Council for, amongst other things, the right to dredge for fill. He makes claims, in which he currently persists, that he has succeeded in this past litigation in establishing a right to dredge and needs no authority from the Council. On this basis Mr. Wintour recommenced dredging on 12th January 1988 and when the Council protested he maintained that he was acting within his rights. That led the Council to commence these Class IV proceedings on 22 March 1988 for injunctions and declarations to set the matter straight.