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
v

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 a determination by the granting of consent pursuant to s 90. Accordingly, the application class 3 is void. It does not engage any jurisdiction of the Court and, therefore, must be dismissed.

8 There have been some costs involved. Mr Hajje, who appears on behalf of the applicant, makes the point that he did offer to appear on the occasions when the matter was mentioned in order to avoid any unnecessary costs to the respondent. It is nevertheless reasonable for a respondent to elect to appear with their own legal representative, particularly where there is an argument about jurisdiction. Correspondence has passed between the parties whereby the respondent has made it quite clear that, in her view, there is no jurisdiction and that she intended to instruct her legal people to file the notice of motion, referred to me by the Registrar. The notice of motion seeks an order that the proceedings be dismissed.

9 In the circumstances, where the applicant has not seriously disputed that there is no jurisdiction for the Court to entertain the application, it is reasonable for the respondent to the application, the applicant on the notice of motion, to be awarded costs in such sum as may be reasonable.

10 The Court, therefore, makes the following formal orders:-

(1) The application is dismissed.

(2) The applicant pay such costs as have been reasonably incurred by the respondent in relation to the purported class 3 application and in relation to the notice of motion.