BBB Constructions Pty Limited and Anor v Catherine J Burn & Ors (No 2) [2008] NSWSC 358

BBB Constructions Pty Limited and Anor v Catherine J Burn & Ors (No 2) [2008] NSWSC 358

The Acts authorised the defendants and their contractors to enter and occupy the Botany Site for the purpose of carrying out emergency works, but did not expressly authorise exclusion of the plaintiffs from the whole site or confer exclusive possession. Any incidental power to exclude was limited to parts of the site where exclusion was reasonably necessary for the effective performance of emergency works. The plaintiffs therefore remained entitled to possession of the Botany Site subject to the defendants' reasonable access for the works and the plaintiffs' obligation not to impede those works.

Jurisdiction
Australia
Judgment Date
21 April 2008
Procedural Posture
Proceedings by Amended Summons Seeking Declarations and Orders Concerning Possession of and Access to the Botany Site / Hearing of Separate Issue Pursuant to UCPR Rule 28.2
Outcome
Declarations and orders made; question of costs reserved.
Legal Topics
['entry and Occupation of Development Site by State Agencies' 'exclusive Possession' 'incidental Power to Exclude Occupiers' 'emergency Works' 'state Emergency and Rescue Management Act']
['administrative Law' 'statutory Interpretation' 'property Law' 'emergency Management Law'] ['entry and Occupation of Development Site by State Agencies' 'exclusive Possession' 'incidental Power to Exclude Occupiers' 'emergency Works' 'state Emergency and Rescue Management Act']

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Procedural Posture

Proceedings by Amended Summons Seeking Declarations and Orders Concerning Possession of and Access to the Botany Site / Hearing of Separate Issue Pursuant to UCPR Rule 28.2

Legal Issues

  1. 1 ['Whether the SERM Act or the Amending Act authorised the defendants to exclude the plaintiffs from the whole of the Botany Site.' "Whether the defendants' statutory power to enter and carry out emergency works conferred exclusive possession of the Botany Site." 'Whether any incidental power to exclude the plaintiffs extended beyond areas reasonably required for the emergency works.' 'Whether the plaintiffs were entitled to re-enter and carry out development work without impeding the emergency works.']

Ratio Decidendi

The Acts authorised the defendants and their contractors to enter and occupy the Botany Site for the purpose of carrying out emergency works, but did not expressly authorise exclusion of the plaintiffs from the whole site or confer exclusive possession. Any incidental power to exclude was limited to parts of the site where exclusion was reasonably necessary for the effective performance of emergency works. The plaintiffs therefore remained entitled to possession of the Botany Site subject to the defendants' reasonable access for the works and the plaintiffs' obligation not to impede those works.

Court Disposition

Declarations and orders made; question of costs reserved.

Orders

  • ['A declaration that subject to declaration 2, the plaintiffs are entitled to exclusive possession of the Botany site.' 'A declaration that for the purpose of carrying out the works, the subject of the direction dated 7 April 2008 and the "emergency works" pursuant to clause 11 of the Amending Act (the works), the...