Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 143

Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 143

Because the undertaking applied only to a s 96 application that included relocation of part of the diversion channel of Tinda Creek onto Lot 1 DP 628806, and the subject s 96 application did not include that component, the undertaking did not apply to the present proceedings. The applicant was therefore not entitled to the restraints sought in prayers 1 and 2 of the notice of motion.

Jurisdiction
Australia
Judgment Date
10 August 2009
Procedural Posture
Class One Proceedings; Appeal Against Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Determination of Prayers 1 and 2 of the Applicant's Notice of Motion for Orders Against a Third Party Objector
Outcome
Notice of motion dismissed insofar as it concerns prayers 1 and 2.
Legal Topics
['modification of Development Consent' 'injunctions and Declarations' 'undertakings to the Court' 'construction of Undertaking' 'third Party Objector']
['environmental Planning and Assessment' 'civil Procedure'] ['modification of Development Consent' 'injunctions and Declarations' 'undertakings to the Court' 'construction of Undertaking' 'third Party Objector']

Case Brief

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Procedural Posture

Class One Proceedings; Appeal Against Refusal of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify a Development Consent / Determination of Prayers 1 and 2 of the Applicant's Notice of Motion for Orders Against a Third Party Objector

Legal Issues

  1. 1 ['Whether Mr Neville Diamond was in breach of, or threatening to breach, his undertaking to the Court by being an objector in the present proceedings or by making submissions.' 'Whether the undertaking applied to the s 96 application in the present proceedings, which sought to amend the excavation area on Lot 2 DP 628806 but not to relocate part of the diversion channel of Tinda Creek onto Lot 1 DP 628806.']

Ratio Decidendi

Because the undertaking applied only to a s 96 application that included relocation of part of the diversion channel of Tinda Creek onto Lot 1 DP 628806, and the subject s 96 application did not include that component, the undertaking did not apply to the present proceedings. The applicant was therefore not entitled to the restraints sought in prayers 1 and 2 of the notice of motion.

Court Disposition

Notice of motion dismissed insofar as it concerns prayers 1 and 2.

Orders

  • ['The notice of motion insofar as it concerns prayers 1 and 2 is dismissed.']