Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 Hearing dates: 28 June 2011 Decision date: 27 September 2011 Before: Basten JA at 1; Macfarlan JA at 25; Tobias AJA at 26 Decision: (1) Allow the appeal in relation to the respondent Saab Corp Pty Ltd (In liq), but otherwise dismiss the appeal. (2) Direct the appellant to serve a copy of this judgment upon the liquidator of Saab Corp Pty Ltd (In liq) within 7 days of the date hereof. The Court will, in the absence of any application made within 28 days of the date of this judgment, make the further following orders: (3) In relation to Saab Corp Pty Ltd (In liq), set aside order 1 made in the Land and Environment Court on 29 October 2010 and in lieu thereof: (a) order that Saab Corp Pty Ltd (In liq) arrange for Energy Australia, or its authorised contractors, within 3 months of the date of these orders, to cause to be carried out all necessary works to place underground any electricity and telecommunication cables within the O'Riordan Street road reserve adjacent to the premises at 109-123 O'Riordan Street, Mascot and to erect appropriate street light standards in accordance with Energy Australia guidelines, in respect of all such work, at the expense of Saab Corp Pty Ltd (In liq); (b) order that the Owners Corporation - Strata Plan No 76317 grant all necessary access to its premises to enable Saab Corp Pty Ltd (In liq), Energy Australia, and any authorised contractor, to carry out the work required in the preceding order, subject to an appropriate undertaking to make good any damage; (c) order Saab Corp Pty Ltd (In liq) to pay two-thirds of the appellant's costs of the proceedings in this Court. (4) Grant Saab Corp Pty Ltd (In liq) a certificate under the Suitors' Fund Act 1951 (NSW) in relation to its costs of the appeal, if not disentitled pursuant to s 6(7). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - validity of condition of development consent - assessment by reference to scope and purpose of statutory power under which it was imposed - practical effect of condition reasonable - no contravention of the statutory limit of the power being exercised