Fostoria-Fannon (Aust) Pty Limited v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 64

Land and Environment Court New South Wales

Medium Neutral Citation: Fostoria-Fannon (Aust) Pty Limited v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 64 Hearing dates: 14 March 2011 Decision date: 14 March 2011 Before: Preston CJ Decision: The Court orders: 1. The hearing on 14-16 March 2011 is vacated. 2. The applicant is to file and to serve on the respondent before 4.00pm on Friday 18 March 2011 a Channel Management Plan prepared by a suitably qualified expert and including the following: (a) drawing and plans showing in detail the works proposed to be carried out along Swamp Oak Creek on Lot 2, DP 615451, which works are to include: (i) those works set out 1 and 2 in the report by Dr David Outhet entitled "New Dam on Swamp Oak Creek at Balarang - Expert Opinion - Comments and Recommendations on 'Stream Works Management Plan'" by Brown Consulting, October 2010; and, (ii) the works and methodology for addressing appropriately the stability of the spillway of the new dam, including plans for the armouring of the right bank of the spillway; (b) the method considered most suitable for the safe removal of the Booth Dam so as to cause minimal harm to the environment, together with details and plans for removal of the Booth Dam and the rehabilitation of the area of the Booth Dam and relevant surrounding area; (c) method of implementation of the Channel Management Plan; and (d) curriculum vitae of the author of the Channel Management Plan. 3. The respondent is to file and to serve on the applicant before 4.00pm on Monday 21 March 2011: (a) its response as to the adequacy of the applicant's Channel Management Plan; and (b) if adequate, a draft of the recommended terms and conditions of the amendment to the existing approval. 4. The applicant is to file and to serve on the respondent its response to the draft terms and conditions of the amendment to the existing approval before 4.00pm on Tuesday 22 March 2011. 5. Proceedings are set for hearing on Wednesday 23 March 2011. 6. The applicant is to pay the respondent's costs of the court attendance on 16 December 2010. 7. The applicant is to pay the respondent's costs thrown away by vacation of the hearing on 14-16 March 2011. Catchwords: COSTS - vacation of hearing - applicant's evidence late and incomplete - whether costs order fair and reasonable - applicant to pay costs thrown away by vacation of hearing Legislation Cited: Water Management Act 2000 Cases Cited: Fostoria-Fannon (Aust) Pty Limited v The Minister Administering the Water Management Act 2000 [2010] NSWLEC 121 Category: Costs Parties: Fostoria-Fannon (Aust) Pty Limited (Applicant) Minister Administering the Water Management Act 2000 (Respondent) Representation: Dr S Berveling (Applicant) Ms C Spruce (Respondent) P J Duffy & Associates (Applicant) New South Wales Office of Water, Department of Environment, Climate Change and Water (Respondent) File Number(s): 10002 of 2011 and 10832 of 2009