Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250

Kennedy v Stockland Development Pty Ltd and Anor [2010] NSWLEC 250

The Applicant failed to establish a serious question to be tried. The evidence showed that work did not commence before the construction certificate issued on 8 September 2010, no breach of the development consent conditions concerning excavation limits or vegetation clearing was demonstrated, there was no evidentiary basis for a preliminary finding of breach of condition B37(1), and the single water sample relied on by the Applicant did not establish that the First Respondent was causing polluted water to escape from the site. Because the threshold requirement for interlocutory relief was not satisfied, it was unnecessary to decide damages or balance of convenience.

Jurisdiction
Australia
Judgment Date
30 November 2010
Procedural Posture
Urgent Interlocutory Injunction Application Concerning Work on a Major Project Residential Subdivision / Notice of Motion Dated 26 November 2010 Seeking Urgent Interlocutory Orders
Outcome
Application for urgent interlocutory orders dismissed.
Legal Topics
['interlocutory Injunctions' 'serious Question to Be Tried' 'development Consent Conditions' 'vegetation Clearing and Excavation' 'pollution of Waters' 'aboriginal Place Protection']
['environmental Law' 'planning and Development' 'aboriginal Cultural Heritage' 'civil Procedure'] ['interlocutory Injunctions' 'serious Question to Be Tried' 'development Consent Conditions' 'vegetation Clearing and Excavation' 'pollution of Waters' 'aboriginal Place Protection']

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Procedural Posture

Urgent Interlocutory Injunction Application Concerning Work on a Major Project Residential Subdivision / Notice of Motion Dated 26 November 2010 Seeking Urgent Interlocutory Orders

Legal Issues

  1. 1 ['Whether urgent interlocutory orders should restrain the First Respondent from vegetation clearing, soil disturbance, earthworks or movement of Aboriginal heritage items in the riparian zones of Woodlands and Hewitts Creeks.' 'Whether urgent interlocutory orders should restrain removal of remaining vegetation within the development footprint.' 'Whether the Applicant established a serious question to be tried about work before issue of a construction certificate, breach of development consent conditions, polluted water escaping from the site, or harm to the Sandon Point Aboriginal place.']

Ratio Decidendi

The Applicant failed to establish a serious question to be tried. The evidence showed that work did not commence before the construction certificate issued on 8 September 2010, no breach of the development consent conditions concerning excavation limits or vegetation clearing was demonstrated, there was no evidentiary basis for a preliminary finding of breach of condition B37(1), and the single water sample relied on by the Applicant did not establish that the First Respondent was causing polluted water to escape from the site. Because the threshold requirement for interlocutory relief was not satisfied, it was unnecessary to decide damages or balance of convenience.

Court Disposition

Application for urgent interlocutory orders dismissed.

Orders

  • ["The Applicant's application for urgent interlocutory orders sought in the Notice of Motion dated 26 November 2010 is dismissed." "The question of costs of the Applicant's motion needs to be resolved."]