Kosciusko Alpine Club Limited v National Parks and Wildlife Service [1988] NSWLEC 122

Kosciusko Alpine Club Limited v National Parks and Wildlife Service [1988] NSWLEC 122

The undertaking should be partially released because the works required by the First Respondent were exclusively directed to rendering the existing partial structure and building site safe, were minor works that did not realistically constitute a continuation of the building work, and would not materially affect the status quo or prejudice any future approval decision.

Jurisdiction
Australia
Judgment Date
01 June 1988
Procedural Posture
Class 4 Proceedings; Amended Notice of Motion / Urgent Motion by the Second Respondent for Partial Release From an Undertaking Given to the Court After the Class 4 Proceedings Were Concluded
Outcome
Amended Notice of Motion granted; Second Respondent partially released from its undertaking.
Legal Topics
['partial Release From Undertaking' 'interlocutory Injunction' 'ski Lodge Building Approval' 'public Safety' 'temporary Safety Works']
['planning and Environment' 'civil Procedure' 'national Parks'] ['partial Release From Undertaking' 'interlocutory Injunction' 'ski Lodge Building Approval' 'public Safety' 'temporary Safety Works']

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Procedural Posture

Class 4 Proceedings; Amended Notice of Motion / Urgent Motion by the Second Respondent for Partial Release From an Undertaking Given to the Court After the Class 4 Proceedings Were Concluded

Legal Issues

  1. 1 ['Whether the Second Respondent should be partially released from its undertaking to enable it to undertake works specified by the National Parks and Wildlife Service.' 'Whether public safety required dismantling and removal of the steel structure rather than the proposed safety works.' 'Whether permitting the works would sanction illegal building works or prejudice any future decision on approval of the ski lodge building complex.']

Ratio Decidendi

The undertaking should be partially released because the works required by the First Respondent were exclusively directed to rendering the existing partial structure and building site safe, were minor works that did not realistically constitute a continuation of the building work, and would not materially affect the status quo or prejudice any future approval decision.

Court Disposition

Amended Notice of Motion granted; Second Respondent partially released from its undertaking.

Orders

  • ['The Second Respondent is released from its undertaking given to the Court on 22 April 1988, but only so as to enable it to execute the works being items 1 to 11 inclusive specified by the National Parks and Wildlife Service in its letter dated 27 May 1988 to Phil McMaster, Architects.']