Turnbull v Director-General of the Department of Premier and Cabinet [2012] NSWLEC 121

Land and Environment Court New South Wales

Medium Neutral Citation: Turnbull v Director-General of the Department of Premier and Cabinet [2012] NSWLEC 121 Hearing dates: 28 May 2012 Decision date: 28 May 2012 Jurisdiction: Class 1 Before: Pain J Decision: 1. The Respondent's Notice of Motion filed on 27 April 2012 is dismissed. 2. The Respondent is to pay the Applicant's costs of the Notice of Motion. Catchwords: PROCEDURE - stop work order issued under the Native Vegetation Act 2003 - whether two stop work orders served - appeal commenced against later served stop work order - whether time to appeal against stop work order has expired Legislation Cited: Building and Construction Industry Security of Payment Act 1999 s 17(3)(c) Corporations Law (Cth) (repealed) Native Vegetation Act 2003 s 37, s 39, s 49 Cases Cited: Calquid Pty Limited v A & D R Iles Pty Limited [2000] NSWSC 558 Chase Oyster Bar v Hamo Industries [2010] NSWSC 332 JAR Developments Pty Ltd v Casteplex Pty Ltd [2007] NSWSC 737 Category: Procedural and other rulings Parties: Ian Robert Turnbull (Applicant) Director-General of the Department of Premier and Cabinet (Respondent) Representation: Mr T Alexis SC with Ms H Irish (Applicant) Ms A Essex with Mr P Barley (solicitors) (Respondent) Cole & Butler (Applicant) Office of Environment and Heritage, Department of Premier and Cabinet File Number(s): 10316 of 2012

EX TEMPORE Judgment 1Mr Turnbull, the Applicant in the substantive Class 1 proceedings, appeals against a stop work order issued under s 37 of the Native Vegetation Act 2003 (the NV Act). A stop work order was sent by the Department by post and received by Mr Turnbull on 3 March 2012. That is the order appealed against as reflected in the Class 1 application filed on 30 March 2012. 2The Director-General, the Respondent in the substantive proceedings, has filed a Notice of Motion dated 26 April 2012 seeking an order that the appeal be struck out because it was not filed within 30 days of service of the stop work order. The Respondent argues that the stop work order was served personally on 21 February 2012 and the period for an appeal has therefore expired. 3Appeals can be commenced under s 39(1) of the NV Act which states: A person aggrieved by a decision of the Director-General to make an order, or to give a direction, under this Division may appeal against the decision to the Land and Environment Court within 30 days of the service of the notice of the order or direction. 4Section 49 of the NV Act deals with service as follows: Any notice under this Act or the regulations that is required to be served or given to a person may be served or given: (a) by delivering it personally to the person to whom it is addressed, or (b) by delivering it to the place of residence or business of the person to whom it is addressed and by leaving it there for the person with some other person, or (c) by posting it to the person to whom it is addressed to the person's place of residence or business last known to the person sending the notice.