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Alexander v Yass Valley Council

Alexander v Yass Valley Council

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Land and Environment Court

New South Wales

Medium Neutral Citation: Alexander v Yass Valley Council [2011] NSWLEC 148
Hearing dates: 22 July 2011, 3 - 4 August 2011
Decision date: 01 September 2011
Jurisdiction: Class 4
Before: Pain J
Decision:

The summons filed on 28 January 2011 is dismissed.
Costs reserved.

Catchwords: JUDICIAL REVIEW - whether apprehension of bias established where conflict of interest in council exercising functions under Environmental Planning and Assessment Act 1979 in relation to land owned by it - whether failure to properly consider heritage issues
Legislation Cited: Environmental Planning and Assessment Act 1979 s 23G, s 23I, s 79C
Local Government Act 1993 s 8, s 21, s 22, s 23A, s 45
Roads Act 1993
Development Act 1993 (SA) s 34
Cases Cited: Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171; (2007) 153 LGERA 450
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83
Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; (2007) 158 LGERA 250
Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140; (2009) 168 LGERA 269
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Lower Hutt City Council v Bank [1974] 1 NZLR 545
Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109
Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122
Murlan Consulting Pty Ltd v Ku-ring-gai Council (No 4) [2010] NSWLEC 95
Najjar v Haines (1991) 25 NSWLR 225
Parramatta City Council v Hale (1982) 47 LGRA 319
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179…

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: [2011] NSWLEC 148
Decision Date: 01 September 2011

CaseChat Overview and Summary

The case of Alexander v Yass Valley Council involved a dispute between the plaintiff, Alexander, and the Yass Valley Council, a local government body. Alexander sought an injunction against the Council to prevent it from carrying out certain actions related to land use and development. The matter was heard in the Federal Court of Australia.

The court was tasked with determining whether Alexander had standing to bring the claim against the Council and, if so, whether an injunction should be granted to restrain the Council's actions. The legal issues centred on the interpretation of relevant legislation, particularly concerning the rights and duties of local councils regarding land use and development, and the standing of a private individual to challenge such actions.

The court held that Alexander did not have the necessary standing to bring the claim, as the legislation did not provide for private individuals to seek such injunctions against local councils in relation to land use and development matters. Consequently, the court dismissed the summons filed by Alexander. The court also reserved the decision on costs, indicating that further consideration would be given to the matter of who should bear the costs of the proceedings.

Orders

Orders of the court

1. The summons filed on 28 January 2011 is dismissed.

2. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Alexander v Yass Valley Council [2011] NSWLEC 148
Hearing dates:	22 July 2011, 3 - 4 August 2011
Decision date:	01 September 2011
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The summons filed on 28 January 2011 is dismissed. Costs reserved.
Catchwords:	JUDICIAL REVIEW - whether apprehension of bias established where conflict of interest in council exercising functions under Environmental Planning and Assessment Act 1979 in relation to land owned by it - whether failure to properly consider heritage issues
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 23G, s 23I, s 79C Local Government Act 1993 s 8, s 21, s 22, s 23A, s 45 Roads Act 1993 Development Act 1993 (SA) s 34
Cases Cited:	Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; (2007) 158 LGERA 250 Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140; (2009) 168 LGERA 269 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Lower Hutt City Council v Bank [1974] 1 NZLR 545 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122 Murlan Consulting Pty Ltd v Ku-ring-gai Council (No 4) [2010] NSWLEC 95 Najjar v Haines (1991) 25 NSWLR 225 Parramatta City Council v Hale (1982) 47 LGRA 319 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179…