Byron Shire Council v Vaughan

COURT OR TRIBUNAL

New South Wales Land and Environment Court, Supreme Court of New South Wales

DATE FILED (OR FIRST HEARING DATE)

27/05/2009

LITIGATION TYPE

Project Approval - Adaptation, Access to Justice

SUBJECT MATTER

Coastal hazard, Costs

REVIEW TYPE

Merits review

SUMMARY

In the first judgment, the appellant council had granted itself a development consent in 2001, under which it had constructed a "geobag revetment" (sandbag wall) to prevent coastal erosion to the respondent's property. The revetment had failed. The respondents intended to reinforce the revetment with large rocks. The appellant council sought an injunction restraining the respondents from undertaking the reinforcement. They argued that: a) the work lacked authorisation; and b) that the balance of convenience favoured maintaining the status quo. Significantly, the council led evidence indicating that the reinforcement would be unsafe, and would lead to down-drift erosion on neighbouring properties. The respondents argued that: a) no authorisation was necessary since the earlier consents existed in rem and were exercisable by the respondents; and b) the balance of convenience favoured reinforcement since the failure of the revetment was causing significant erosion, and required urgent reinforcement. The respondents further sought a mandatory injunction allowing the reinforcements. Pain J found that the balance of convenience favoured the council's position. The council's evidence on the potential adverse effects of reinforcement on neighbouring properties was decisive. His Honour granted an injunction restraining the Respondent from carrying out any further works.

In the second judgment, the defendant council applied for leave to file an amended defence in which certain admissions were withdrawn - principally, that an earlier development consent to itself, but with respect to the plaintiff's property, existed in rem. The effect would be to put in issue the scope of the plaintiff's entitlement to carry out coastal protection works under the earlier consent. The plaintiffs resisted the application. Harrison AsJ granted the application, finding the withdrawal of admissions satisfied the test set out in SLE Worldwide Australia. A costs order was made against the plaintiffs.

In the third judgment, the plaintiffs appealed from the earlier decision of Harrison AsJ (Vaughan v Byron Shire Council [2011] NSWSC 824) on two grounds: a) that Her Honour erred in allowing the defendant council to amend its defence so as to withdraw certain admissions; and b) that Her Honour denied the plaintiffs procedural fairness in making the costs order without allowing the plaintiffs to address the question of costs. Fullerton J found that: a) there was no serious error, and any error may be remedied by the excision of a phrase in the amended defence; b) procedural fairness had been denied by failing to allow the plaintiffs to address the question of costs. Accordingly, His Honour orderd that: a) the necessary phrase be excised from the amended defence; b) the costs order be set aside and the plaintiffs ordered to pay only the the costs of the earlier hearing.

CASE DOCUMENTS

Byron Shire Council v Vaughan [2009] NSWLEC 88
Vaughan v Byron Shire Council [2011] NSWSC 824
Vaughan v Byron Shire Council [2012] NSWSC 75