Baulkham Hills Shire Council v O'Donnell [1988] NSWLEC 123

Baulkham Hills Shire Council v O'Donnell [1988] NSWLEC 123

The Applicant did not establish sufficient evidence that the area physically and lawfully used for extraction immediately prior to the relevant date was limited to the areas shown in the undertakings plan, nor that such area incorporated all relevant paddock areas. Thus, the claim to injunctive relief failed.

Parties
Applicant: Baulkham Hills Shire Council; Respondent: O'Donnell
Jurisdiction
Australia
Judgment Date
01 June 1988
Procedural Posture
Class 4 Proceedings / Application for Injunctive Relief Following Earlier Judgment
Outcome
Application dismissed with costs
Legal Topics
Existing Use Rights, Extractive Industry, Application of S.109 of Environmental Planning and Assessment Act 1979
Environmental Law Planning Law Existing Use Rights Extractive Industry Application of S.109 of Environmental Planning and Assessment Act 1979

Case Brief

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Parties

Baulkham Hills Shire Council

Applicant

O'Donnell

Respondent

Procedural Posture

Class 4 Proceedings / Application for Injunctive Relief Following Earlier Judgment

Legal Issues

  1. 1 Whether Applicant is entitled to injunctive relief restraining extraction of sand and soil beyond area physically and lawfully used before the commencement of the Environmental Planning and Assessment (Amendment) Act 1985
  2. 2 Interpretation and application of s.109(2)(b) of the Environmental Planning and Assessment Act 1979

Ratio Decidendi

The Applicant did not establish sufficient evidence that the area physically and lawfully used for extraction immediately prior to the relevant date was limited to the areas shown in the undertakings plan, nor that such area incorporated all relevant paddock areas. Thus, the claim to injunctive relief failed.

Court Disposition

Application dismissed with costs

Orders

  • The application is dismissed with costs.