A Class Property Pty Limited v Parker - [2004] NSWLEC 398

Land and Environment Court

of New South Wales

CITATION: A Class Property Pty Limited v Parker [2004] NSWLEC 398

PARTIES:
APPLICANT
A Class Property Pty Limited
RESPONDENT
Vira Parker

FILE NUMBER(S): 30532 of 2004

CORAM: Talbot J

KEY ISSUES: Jurisdiction :- no jurisdiction for application to grant an easement to be commenced until determination by grant of consent in class 1 proceedings - application dismissed
Costs :- reasonable for applicant to pay respondent's costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97,
Land and Environment Court Act 1979 s 40, s 40(1)

CASES CITED:

DATES OF HEARING: 29/06/2004

EX TEMPORE
JUDGMENT DATE : 06/29/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J B Hajje (Solicitor)
SOLICITORS
John B Hajje & Associates
RESPONDENT
Mr J B Hones (Solicitor)
SOLICITORS
Hones Lawyers

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

30532 of 2004

Talbot J

29 June 2004

A Class Property Pty Limited

Applicant

Vira Parker

Respondent

Judgment

Introduction

1 Section 40(1) of the Land and Environment Court Act 1979 (“the Court Act”) provides that if the Court has determined to grant development consent on an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”), the appellant may apply to the Court for an order imposing an easement over land.

2 An appeal is on foot pursuant to s 97 of the EP&A Act. That appeal has been lodged by the applicant. The respondent to that appeal is Baulkham Hills Shire Council, not Vira Parker, the respondent named in this class 3 application filed on 7 May 2004 whereby the applicant is seeking an order that an easement be granted over her land.

3 The class 1 appeal is listed for further callover on 6 July 2004 to allow for a Statement of Issues and Basic Facts to be served by 5 July 2004.

4 It is clear that the class 3 application, if it is to be heard, will not be heard for some time pending the outcome of the class 1 appeal. It is conditional upon a determination by the Court to grant development consent.

5 Section 40 of the Court Act does not appear to contemplate that it is necessary for the applicant to join the owner of the land to be burdened by the easement as a defendant. That obligation is imposed upon the Court before making an order. The section does not state when the owner is to be joined, except that it is before the making of an order under the section that the Court must notify the owner of the land affected and that person is entitled to be heard.

6 I cannot really understand what the draftsperson had in mind by framing s 40 in that rather novel, and if I may so with great respect peculiar, way. Nevertheless, that is what it says.

7 There is no jurisdiction in the Court for the class 3 application to be commenced until there has been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 398
Decision Date: 06/29/2004

CaseChat Overview and Summary

In the matter of A Class Property Pty Limited v Parker, the applicant, A Class Property Pty Limited, sought an easement over land owned by the respondent, Vira Parker, through a class 3 application filed under the Land and Environment Court Act 1979. The application was made contingent on the granting of development consent in a class 1 appeal which was already on foot. The primary issue before the court was whether the Land and Environment Court had jurisdiction to hear the class 3 application before the class 1 appeal was determined. Additionally, the court had to consider the appropriate costs order given the circumstances of the case.

The court determined that the Land and Environment Court did not have jurisdiction to hear the class 3 application until the class 1 appeal was concluded with a determination to grant development consent. The court relied on the statutory language of the Land and Environment Court Act 1979, which specified that an application for an easement could only be made following a grant of consent in the class 1 proceedings. The court concluded that since the class 1 appeal had not yet been determined, the class 3 application was void and had no legal effect. Consequently, the application was dismissed for lack of jurisdiction. Regarding costs, the court found it reasonable for the respondent to be awarded costs due to the applicant's failure to seriously contest the lack of jurisdiction.

In conclusion, the court dismissed the application for the easement and ordered that the applicant pay the respondent's costs. This decision underscored the importance of following statutory procedures and the court's lack of jurisdiction to entertain applications that are contingent on unresolved higher-priority proceedings.

Orders