Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216

Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216

The Court refused interlocutory relief sought in paragraph 1 because the evidence concerning Lot 235 and residue Lot 238 did not establish a serious question to be tried, including because the Applicant's evidence was insufficiently specific, some grounds were unsupported, and the First Respondent relied on existing consents and permits. The Court was minded to grant interlocutory restraint concerning the AIR land because there was a serious question to be tried about authorisation for stockpiling and the need for a s 90 permit, destruction of Aboriginal heritage would not be adequately compensable in damages, and the balance of convenience favoured relief despite possible financial...

Jurisdiction
Australia
Judgment Date
20 November 2002
Procedural Posture
Class 4 Proceedings / Judgment on Interlocutory Relief
Outcome
Orders sought in paragraphs 1 and 4 of the Applicant's notice of motion were not granted; the Court was minded to grant relief concerning the AIR land but the second and third orders were still to be finalised; costs were reserved.
Legal Topics
['serious Question to Be Tried' 'irreparable Injury' 'balance of Convenience' 'national Parks and Wildlife Act Permit No. 1427' 'development Consent for Subdivision Works at Sandon Point' 'stockpiling Soil on AIR Land' 'aboriginal Relics' 'sepp 55 Contamination Issue']
['environmental Planning and Assessment' 'aboriginal Cultural Heritage' 'interlocutory Injunctions' 'threatened Species and Vegetation Clearing' 'contaminated Land'] ['serious Question to Be Tried' 'irreparable Injury' 'balance of Convenience' 'national Parks and Wildlife Act Permit No. 1427' 'development Consent for Subdivision Works at Sandon Point' 'stockpiling Soil on AIR Land' 'aboriginal Relics' 'sepp 55 Contamination Issue']

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Procedural Posture

Class 4 Proceedings / Judgment on Interlocutory Relief

Legal Issues

  1. 1 ['Whether interlocutory restraint should be granted against activity relying on National Parks and Wildlife Service permit No. 1427 on Lot 235 and residue Lot 238.' 'Whether work on Lot 235 required further development consent under the Environmental Planning and Assessment Act 1979.' 'Whether work on Lot 235 breached the Threatened Species Conservation Act 1995 or National Parks and Wildlife Act 1974 by destroying part of an endangered ecological community.' 'Whether work on Lot 235 required a permit under the Rivers and Foreshores Improvement Act 1948.' 'Whether contamination on Lot 235 engaged State Environmental Planning Policy no. 55 so as to require development consent.' 'Whether stockpiling soil on the AIR land was outside the Wollongong City Council development consent DA 99/588.' 'Whether soil stockpiled on the AIR land contained Aboriginal relics requiring a permit under s 90 of the National Parks and Wildlife Act 1974.' 'Whether the balance of convenience supported interlocutory restraint despite inconvenience and financial loss to the First Respondent.']

Ratio Decidendi

The Court refused interlocutory relief sought in paragraph 1 because the evidence concerning Lot 235 and residue Lot 238 did not establish a serious question to be tried, including because the Applicant's evidence was insufficiently specific, some grounds were unsupported, and the First Respondent relied on existing consents and permits. The Court was minded to grant interlocutory restraint concerning the AIR land because there was a serious question to be tried about authorisation for stockpiling and the need for a s 90 permit, destruction of Aboriginal heritage would not be adequately compensable in damages, and the balance of convenience favoured relief despite possible financial...

Court Disposition

Orders sought in paragraphs 1 and 4 of the Applicant's notice of motion were not granted; the Court was minded to grant relief concerning the AIR land but the second and third orders were still to be finalised; costs were reserved.

Orders

  • ["The orders sought in par 1 and 4 of the Applicant's notice of motion are not granted." 'The question of costs is reserved.' 'The exhibits may be returned.']