Tyree & Ors v National Trust of Australia & Anor [1989] NSWLEC 162

Land and Environment Court of New South Wales

CITATION : Tyree & Ors v National Trust of Australia & Anor [1989] NSWLEC 162 APPLICANT Tyree & Ors PARTIES : RESPONDENT National Trust of Australia & Anor

FILE NUMBER(S) : 40230 of 1988 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: Gould and Anor v. Vaggelas and Ors, 157 CLR, 215. DATES OF HEARING: DATE OF JUDGMENT: 02/24/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This is a motion by the applicants in Matter 40230 of 1988 seeking orders that the first respondent, The National Trust of Australia, N.S.W., indemnify the applicants in relation to an order for costs made by me on 20th October, 1988, that the applicants pay the costs of the third respondent, Hiraz International Limited.

The conduct of the National Trust relied upon by the applicants on this Motion is the letting of the subject premises for a commercial purpose without the consent of the responsible authority. The third respondent was an exhibitor who had leased the premises from the owner, The National Trust of Australia, and the second respondent is the consenting authority of the council buildings on this property at Woollahra.

The applicants who were successful in the proceedings were owners and occupiers of adjoining premises. They had been complaining for some time to Council concerning claimed injury to their amenity as a consequence of the letting of the subject premises. When the matter came for hearing before me in relation to the proposed use by the third respondent, I was unpersuaded that I should make orders against the third respondent because of the conduct of the applicants and their delay in instituting proceedings, notwithstanding their awareness of the likelihood of the use of the premises in breach of the provisions of the Local Environmental Plan.