Summary of Gales-Kingscliff Court Actions

This page lists the Court decisions involving Gales.  This page is to keep the public informed of Court decisions involving Gales and Tweed Shire Council or other planning authorities. 

At all times Gales seeks to reach a negotiated outcome with Council so as to avoid costly and unnecessary legal actions.  However, in the case that Council does not wish to negotiate with Gales, Gales has no choice but to take legal actions so as to protect its interests, which have coincided with the majority interests expressed by Tweed Shire residents.

 2008 Court Decisions

14 July 2008 - Gales plans to fill north and south of Turnock Street approved in Land & Environment Court

  • On 14 July 2008 the Chief Judge of the Land & Environment Court Preston CJ handed down his decision which approved Gales plans to fill north and south of  Turnock Street  , and approved Gales plans to retain significant amounts of habitat for the Wallum Froglet and the Mitchell Rainforest Snail.
  • The Court also approved a temporary haul road from  Tweed Coast Road to the  Turnock Street  roundabout will Dr Segal said creates the possibility of a road following this path in the future, as wanted by a great majority of Kingscliff residents and shop owners.
  • This is the 13th win for Gales, in an unbroken record, in a series of court cases against Tweed Shire Council.   
  • Decision of the Land & Environment Court, with Gales highlight.
  • Article on Land & Environment Court decision, 'K'cliff land dispute 'over'', Tweed Border Mail

2007 Court Decisions

23 November 2007 - Gales wins in the Land & Environment Court against Council's condition to fence off trees in cattle gazing case (L&EC 10775 of 2007) 

  • Council required a condition of consent to cattle grazing that Gales fence off the trees along the western and northern boundary of the STP lot. Council claimed that the trees were an Endangered Ecological Community and they needed to be fenced to protect them from cattle grazing.
  • Council had previously (in 1999) entirely cleared and woodchipped and laser levelled about 12 ha of trees and vegetation to the east for a commercial Turf Farm, and in 2006 had totally cleared all the trees to the west, leaving a narrow sparse band of trees on the east side of Tweed Coast Road on the old STP site opposite Chinderah Golf Course. Council totally cleared and woodchipped all the vegetation on land in its ownership, but claims that cattle grazing (Gales did not propose removal of trees) was damaging and the trees required to be fenced.
  • Gales challenged council's condition. Gales was successful, and each side had to pay its own costs.
  • Several Court hearings were involved for case L&EC 10775 of 2007 with barristers and solicitors, and Council's experts from the Tweed attended Court in Sydney.

16 October 2007 - Gales wins in the Land & Environment Court against Council's refusal to allow cattle to graze on Chinderah land 

  • On 16 October 2007 Gales succeeded in a Land & Environment Court appeal against Council's refusal to allow Gales to temporarily graze cattle on the former sewer treatment plant site at Chinderah, which Gales acquired from Council in 2005 and on which Gales proposes to build a district shopping centre.
  • Council argued that although the cattle gazing use was innocuous, it was not permitted under the current zoning.
  • Council's barrister told the Judge that this case was not just about cattle, but that Gales wanted to develop a district centre on this land.
  • The Judge was aware of that possibility, but nevertheless awarded the case to Gales.

  • "Gales win case against TSC - Segal warning as rezoning battle goes on", Daily News, 18 October 2007 - Article

  • "Segal has Council under siege", Daily News, 19 October 2007 - Article

November 2007 - Council agrees to pay Gales $9000 for Supreme Court proceedings (SC3557/07) in relation to STP area 2c

  • Council served a Notice on Gales under the Deed of Call Option (January 2002) that it would not carry out decontamination, removal of ponds and possibile remediation of area 2c of the STP site at Chinderah because Council considered it too costly or impracticable. 
  • Gales was forced to dispute the Notice in the Supreme Court due to Councils lack of reasons. 
  • Council withdrew their Notice and Gales claimed costs.
  • Council agreed to pay Gales $9000 for the Supreme Court proceedings.

MAY 2007:  GALES WIN IN THE HIGH COURT OF AUSTRALIA.  COUNCIL'S LEGAL FEES AND COSTS ESTIMATED $1 MILLION.

 Minister for Infrastructure and Planning v Gales Holdings Pty Ltd [2007] High Court of Australia 

Summary:

 

  • On 25 May 2007 Tweed Shire Council was unsuccessful in the High Court of Australia seeking leave to appeal to the High Court against the decision in the Court of Appeal concerning the rezoning of the Sewer Treatment Plant site.
  • Therefore, Gales was finally successful in its action against the Council rezoning the site to ‘Industrial’.  The zoning reverts to the former ‘Sewer Plant’ zoning, and Council can now rezone the site to best uses.

Costs:

  • Gales was awarded costs.  Gales estimates that its own legal costs (which Council must now pay), and Council’s legal costs amount to about $1 million.
  • For articles on this case please click here.

Current legal actions - not yet concluded

Development Applications for local shopping centre, filling of land and haul road*

* As of June 2007 Gales withdrew the part of the development application for the 'proposed sewer main, filling and road corridors'.  This application was orginally put in at the recommendation of Council, and Council subsequently refused the application.  Gales is seeking costs.

Summary:

 

  • Gales appeals to the Land and Environment Court against Council not approving its Development Applications for a supermarket, fill and a [haul road].

Issues:

 

  • Council did not approve the following Development Applications submitted by Gales:
    • shopping centre and commercial development on land south of Turnock Street ;
    • filling north and south of Turnock Street ; and
    • [haul road from the Turnock Street/Elrond Drive roundabout in the east to Tweed Coast Road in the west (to transport fill material to the site).]

 

Status:

  • In February and April 2006 Talbot J held that a Species Impact Statement be prepared in respect of the Wallum Froglet and Mitchells Rainforest Snail before the merits of the development applications can be determined.
  • Gales began preparing the Species Impact Statement.
  • Without prejudice negotiations between Council and Gales to reach a settlement began in November 2006.
  • Negotiations are ongoing.
  • * As of June 2007 Gales withdrew the part of the development application for the 'proposed sewer main, filling and road corridors'.

Action for damages to Gales land caused by Council fillings in drains
 

Summary:

 

  • Damages case in the Supreme Court of NSW regarding Council filling in drains which caused damage to Gales land.

Status:

 

  • Gales has completed discovery of documents that are relevant to the case.  Council in the process of completing discovery.
  • 27 March 2007 and 23 April 2007 - Gales and Council respectively serve the lay evidence on which they intend to rely in evidence.
  • 30 April 2007 - proceedings are listed for further directions.

2006 Court Decisions

Gales Holdings Pty Ltd v Valuer General [2006] NSWLEC 798 - Judgement

Summary:

 

  • Gales succeeds in maintaining its objections regarding the valuations of its land by the Valuer General.

Judge:

  • Talbot J

Dates of Hearing:

  • 22-24 November 2006

Date of Judgment:

  • 22 December 2006

Issues:

 

  • Valuation of Land: objection in respect of several parcels of undeveloped land with mixed potential valued in one line.
  • Gales appealed the decision of the Valuer General to disallow objections to land value respectively at base date 1 July 2003 for the 2004 tax year and 1 July 2004 for the 2005 tax year.  

Judgment:

 

  • Gales succeeded in maintaining its objections.

Costs:

  • The Court ordered that the Valuer General pay one-half of the Applicant’s costs incurred at the hearing.

Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 - Judgement

 

Summary:

 

  • The NSW Court of Appeal found that the Council’s decision to rezone the former Sewerage Treatment Plant site at Chinderah to ‘Industrial’ was invalid.    

Judges:

  • Tobias JA, Beazley JA, Basten JA - NSW Court of Appeal

Dates of Hearing:

  • 5 September 2006

Date of Judgment:

  • 21 December 2006

Issues:

 

  • Whether the local environment plan which zoned Council’s former Sewer Treatment Plant in Kingscliff was validly made.
  • Issues included the public exhibition process, whether Council complied with the EPA Act and whether Council was required to take into consideration certain reports.  

Judgment:

 

  • Tweed Local Environmental Plan (Amendment No 14) which purportedly came into effect on 6 August 2004 was declared to be void and of no effect.
  • The orders made by Bignold J on 1 November 2005 and 2 December 2005 were set aside.
  • Tobias JA and Beazley JA (Basten JA dissenting) found that the Tweed Shire Council’s decision to rezone of the former Sewerage Treatment Plant site at Chinderah to an ‘Industrial’ zoning was invalid (Gales purchased the Chinderah site from Council in May 2005).
  • The zoning to ‘Industrial’ was invalid as the Council was bound, but failed, to take into consideration Core Economics’ final retail report (the retail report commissioned by Council).   

Costs:

  • Council was ordered to pay Gales costs of the proceedings before the Land and Environment Court and of the appeal to the Supreme Court.

Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 591 - Judgement

 

Summary:

 

  • Whether an SIS was required in respect of Gales development applications around Turnock Street was a preliminary point of law – each party to pay their own costs.

 

Judge:

  • Talbot J

Dates of Hearing:

  • 25 August 2006

Date of Judgment:

  • 22 September 2006

 

 

Judgment:

  • Costs - determination of whether SIS required as preliminary point of law.

Costs:

  • Council was not awarded costs, each party to pay their own costs.

Gales Holdings Pty Ltd v Tweed Shire Council [Settled]

 

Summary:

 

  • Council’s contractual obligation to sell to Gales Area 2c in the plan of subdivision for Lot 32 in DP 847319.

Issues:

 

  • Council prepared a plan of subdivision for area 2c in the plan of subdivision for Lot 32 in DP 847319 (the land adjacent to the Kingscliff Sewerage Treatment Plant) which was 15.386% of the total area than that required by the Deed of Call Option.

 

Settlement:

 

  • Settlement reached June 2006.  Council made an Offer of Compromise, which Gales accepted, which required Council to prepare a plan of subdivision (now Lot 2 in DP 1075645) correctly in accordance with the Deed of Call Option, and each party to pay their own costs.

 

Costs:

  • Each party paid their own costs.

Gales Holdings Pty Limited v Minister for Planning & Australian Bay Lobster Producers Pty Ltd [2006] NSWLEC 483

Summary:

 

  • The Minister’s decision to approve the Lobster Farm was upheld.  Gales did not succeed in preventing a large Lobster Farm to be built in the Chinderah floodplain.

 

Judge:

  • Talbot J

Dates of Hearing:

  • 5-6 July 2006, 14 July 2006 (written submissions), 1 August 2006

Date of Judgment:

  • 4 August 2006

Issues:

 

  • Judicial Review - whether formation of requisite opinion for categorisation of development is a jurisdictional fact.
  • The Lobster Farm was approved by the Minister for Planning under State Environmental Planning Policy No. 62 - Sustainable Aquaculture (“SEPP 62”). 
  • Clause 13(3) of SEPP 62 states that the consent authority is not to consent to aquaculture development unless it has first categorised the development in accordance with cl 13 after receiving adequate information from the applicant for that purpose (the applicant provided that information in a separate strategy document).

 

Judgment:

  • Talbot J found that the Minister had appropriate information before him to make his decision, and that there was nothing manifestly irrational about his decision to act on that information.
  • The Minister was not bound to go beyond that information in order to ensure that he took into account all of the relevant factors necessary to enable him to reach the requisite opinion.
  • Therefore, whether or not the words “catchment” and “indigenous” were misconstrued, if indeed they were (as Gales argued), is irrelevant in the context of judicial review.
  • The expert evidence relied upon by Gales was found to be irrelevant.
  • The Minister’s decision to approve the Lobster Farm was upheld.

Minister for Planning & Anor Gales Holdings Pty Limited [2006] NSWCA 212

Summary:

  • The NSW Court of Appeal found that the granting of development consent to the Lobster Farm by the Minister was valid.

 

Judges:

  • Giles JA; Hodgson JA; Ipp JA (NSW Court of Appeal)

Dates of Hearing:

  • 26 July 2006

Date of Judgment:

  • 31 July 2006

Issues:

 

  • The Minister and Australian Bay Lobsters Producers Pty Ltd appealed the decision of Talbot J in Gales Holdings Pty Ltd v Minister for Planning & Anor [2006] NSWLEC 347. 
  • Whether whole or part of the development is prohibited - Effect of transitional provisions - Whether transitional provisions valid.

 

Judgment:

 

  • The granting of development consent to the Lobster Farm by the Minister was valid.
  • The matter was remitted to the Land & Environment Court for another point of law to be determined (see decision of Talbot J in Gales Holdings Pty Ltd v Minister for Planning & Anor [2006] NSWLEC 483.

Gales Holdings Pty Limited v Minister for Planning & Australian Bay Lobster Producers Pty Ltd [2006] NSWLEC 347 - Judgement

Summary:

 

  • The Minister was held not to be the consent authority, therefore the consent granted by the Minister was invalid.  This decision was overturned by the NSW Court of Appeal.

 

Judge:

  • Talbot J

Dates of Hearing:

  • 5-6 June 2006, 13 June 2006, 14 June 2006 (written submissions)

Date of Judgment:

  • 23 June 2006

Facts:

  • On 21 December 2005 the Minister for Planning approved the development application submitted by Australian Bay Lobster Producers Pty Ltd, to construct facilities for the breeding and growing of “bay lobsters” (Thenus spp., also known as the Moreton Bay Bug). The proposal included the tank-based commercial aquaculture facility and associated seawater supply works located within the floodplain in the catchment of the Tweed River .
  • The Minister granted consent to the bug farm on the basis that it was State Significant Development and permissible pursuant to SEPP 62.
  • Gales challenged the validity of that development consent.
  • Gales was concerned that filling 45 ha of the Chinderah flood plain could prevent filling of Gales land identified as the site for a District Centre for the Tweed Coast , and prevent filling for Chinderah Village .  The bug farm was very much opposed by Chinderah residents.

 

Issues:

 

  • Construction and Interpretation - State significant development - effect of transitional provisions.
  • Development consent - application determined by Minister as wrong consent authority.

 

Judgment:

 

  • The Minister is not the consent authority, therefore the consent granted by the Minister is invalid.

[Please scroll down]

Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 212 - Judgement

Summary:

 

  • The Court held that Gales was required to prepare a SIS as the proposed development is likely to have a significant impact on the Wallum Froglet.

 

Judge:

  • Talbot J

Dates of Hearing:

  • 13-14 July 2006, 24 November 2005 (site inspection), 25 November 2005, 9-10 March 2006, 15 March 2006 & 22 March 2006 (written submissions)

Date of Judgment:

  • 28 April 2006

Issues:

 

  • Preliminary point of law.
  • Development Application for filling north and south of Turnock Street (in preparation for future urban development) and haul road from the Turnock Street/Elrond Drive roundabout in the east to Tweed Coast Road in the west (to transport fill material to the site).
  • Whether Species Impact Statement required in respect of the Wallum Froglet Crinia tinnula and the Wallum Sedge Frog Litoria olongburensis.
  • Gales argued that there were no Wallum Sedge Frog at the site – during the hearing the Court Appointed Expert confirmed that there were no Wallum Sedge Frog at the site.
  • During the proceedings Gales amended its development application to include ameliorative measures, including setting aside an area of Wallum Froglet habitat and enhancement of its breeding habitat.

 

Judgment:

 

  • Gales required to prepare a Species Impact Statement as the proposed development is likely to have a significant impact on the Wallum Froglet.

Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 85 - Judgement

Summary:

 

  • The Court held that Gales was required to prepare a SIS as the proposed development is likely to have a significant impact on the Mitchell’s Rainforest Snail Thersites mitchellae (‘MRS’).

 

Judge:

  • Talbot J

Dates of Hearing:

  • 13-15 July 2005, 24 August 2005, 24 November 2005 (site inspection), 25 & 28 November 2005, 5 December 2005 & 22 February 2006 (written submissions).

Date of Judgment:

  • 27 February 2006

Issues:

 

  • Preliminary point of law.
  • Development Application for shopping and commercial development.  Gales proposes to fill the land (south of Turnock Street ) and relocate an existing drain.
  • Whether Species Impact Statement required in respect of the Mitchell’s Rainforest Snail Thersites mitchellae (‘MRS’).

Judgment:

 

  • Talbot J held that Gales was required to prepare a Species Impact Statement as there was the potential for significant effect on the survival of MRS on the site between the start of construction and the point that the rehabilitation program would begin to provide a long term benefit.

2005 Court Decisions

 

Gales Holdings Pty Limited v Minister for Infrastructure and Planning and Anor [2005] NSWLEC 617

 

Summary:

 

  • Council's decision to zoned the former sewer treatment plant to Industrial was not unreasonable (overturned in NSW Court of Appeal).

 

Judge:

  • Bignold J

Dates of Hearing:

  • 27-29 April 2005

Date of Judgment:

  • 1 November 2005

Issues:

 

  • Challenge to validity of LEP amendment which rezoned former Council sewer plant site to Industrial – alleged failure to consider relevant materials – alleged unreasonabless of Council’s decisions.

 

Judgment:

 

  • Council's decision was not unreasonable (overturned in NSW Court of Appeal).

Gales Holdings Pty Limited v Tweed Shire Council [2005] NSWADT 168

Summary:

 

  • The Council was ordered to publicly release all of the documents it claimed were confidential, including the Core Economics retail reports.

Judge:

  • Higgins S – Judicial Member (NSW Administrative Decisions Tribunal)

Dates of Hearing:

  • 5 April 2005 and 8 April 2005

Date of Judgment:

  • 29 July 2005

Issues:

 

  • Council claimed that (amongst other documents) the Core Economics retail reports of 31 October 2003, 15 November 2003 and January 2004 were confidential and exempt from being released to the public as they were “internal working documents”.

 

Judgment:

 

  • The Council was ordered to publicly release all of the documents it claimed were confidential.  As a result of this decision, the Core Economics reports, which identified Chinderah (Gales land) as the ideal site for the district centre, became available to the public.

 

Costs:

  • Part-costs were awarded to Gales – which is extremely unusual in FOI cases.

2004 Court Decisions

 

Gales Holdings Pty Ltd v Tweed Shire Council (No. 2) [2004] NSWLEC 351

 

Summary:

 

  • Gales did not have to pay Council’s costs in relation to Gales Notice of Discontinuance.

Judge:

  • Bignold J

Dates of Hearing:

  • 30 March 2004

Date of Judgment:

  • 2 July 2004

Issues:

 

  • Costs concerning Gales Notice of Discontinuance in regard to Gales development application for a Woolworths based supermarket and specialty shops on the corner of Turnock St and Elrond Drive .

 

Judgment:

 

  • No order was made as to costs in the discontinued proceedings, because the litigation history and the parties’ conduct not justify the conclusion that it was fair and reasonable to make a costs order against either party.

 

Costs:

  • No order made as to costs.

2003 Court Decisions

 

Gales Holdings Pty Ltd v Tweed Shire Council [2003] NSWLEC 194

 

Summary:

 

  •  Council lost its application that Gales pay Council costs concerning Gales vacation of hearing dates in regard to Gales first Woolworths supermarket application.

Judge:

  • Talbot J

Dates of Hearing:

  • 14 August 2003

Date of Judgment:

  • 29 August 2003

Issues:

 

  • Costs on a Notice of Motion concerning vacation of hearing dates in regard to Gales development application for a Woolworths based supermarket and specialty shops on the corner of Turnock St and Elrond Drive .

 

Judgment:

 

  • Each party to pay its own costs.

Pre-2000 Court Decisions

   Gales Holdings Pty Ltd v Tweed Shire Council [1999] NSWLEC 195

 

 

Summary:

 

  •  Gales succeeded in stopping Council from constructing a turf farm adjacent to Kingscliff Sewage Treatment Plant.

Judge:

  • Lloyd J

 

Dates of Hearing:

  • 27-29 July 1999

 

Date of Judgment:

  • 31 August 1999

 

Facts:

 

  • After Council’s first proposal to establish a turf farm was defeated by Mr Roy Rudman in the L&E Court in 1993, Council again gave itself approval to establish a commercial turn far on 25 hectares, on land adjacent to the Kingscliff Sewage Treatment Plant.
  • The Council proposed to irrigate the turf farm with treated effluent from the sewerage treatment works and to apply treated sludge (also known as bio-solids) from the treatment works to the turf as a soil replacement and ameliorant.
  • The turf farm would be operated as a commercial enterprise by private management under a management agreement between a private operator and the Council.
  • Gales argued that the land has two characteristics which make it unsuitable for the purpose, namely soil of a high permeability and a high groundwater table which is generally between one and two metres below the surface.

 

Issues:

  • Gales sought a declaration that the commercial turf farm proposed by the Council is prohibited or alternatively is permissible only with consent under Part 4 of the EP&A Act.
  • Gales also sought an injunction restraining the Council from using or permitting the use of the land as a commercial turf farm.
    Judicial review - whether "activity" in s110 EP&A Act is a jurisdictional provision?
    Wednesbury unreasonableness.

 

Judgment:

 

  • Gales succeeded in demonstrating that the proposed turf farm is not part of the swage treatment works and thus does not come within clause 11 of SEPP4 etc.

Gales Holdings Pty Ltd v Tweed Shire Council [1999] Land & Environment Court No. 0125/99

Summary:

 

  • Application for enforcement of s.12 Local Government Act 1993.
  • Council unlawfully refused Gales access to documents.  Gales was forced to commence an action for release of the documents.
  • Council released the documents after proceedings were commenced.
  • The Judged ordered Council to pay Gales legal costs.

Judge:

  • Sheahan J

Dates of Hearing & Judgement:

  • 7 July 1999

Issues & Judgement:

 

  • Council refused to allow Gales access to documents.
  • Gales was forced to commence an action for release of the documents under Section 12, which it was entitled to do, but Council still refused to release the documents.
  • Only after Court proceedings were commenced, Council agreed to Gales request to access the documents.
  • At the hearing the Judge considered the conduct of Council prior to commencing the Court proceedings and ordered the Council to pay Gales legal costs.
  • Gales sought to use documents that it had from Council, but Council refused.. Gales was awarded $4,500 costs

Costs:

  • Council paid Gales costs of $4,500.

Rudman v Tweed Shire Council, 28 September 1993, unreported, NSWLEC- Judgement

Summary:

 

 

  • Mr Roy Rudman, a Kingscliff local, succeeded in stopping Council from constructing a turf farm adjacent to Kingscliff Sewage Treatment Plant. 

Judge:

  • Bignold J

 

Issues:

 

  • On 8 April 1993 the Council granted development consent to itself under Part 4 of the EP&A Act for the establishment of a turf farm on the land adjacent to the Kingscliff Sewage Treatment Plant.
  • Mr Roy Rudman exercised the right of appeal afforded by s98 of the Act and appealed to the Court against the Council’s determination to grant consent to the development.
  • Council was legally represented but Mr Rudman was unrepresented.

 

Judgment:

 

  • Appeal by Mr Rudman allowed on the merits and Council was refused development consent for its proposed turf farm.

 

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