Land and Environment Court
New South Wales
Case Title: Arinson Pty Limited v City of Canada Bay Council (No 2) Medium Neutral Citation: [2014] NSWLEC 167 Hearing Date(s): 22 October 2014 Decision Date: 22 October 2014 Jurisdiction: Class 4 Before: Biscoe J Decision: By consent, Order 2 made on 2 May 2014 is stayed pending determination of the appeal to the Court of Appeal.
Catchwords: PRACTICE AND PROCEDURE - stay of an order for payment within 28 days of compensation for an easement granted by the Court pending determination of an appeal. Legislation Cited: Conveyancing Act 1919 s 88K Cases Cited: Arinson Pty Limited v City of Canada Bay Council [2014] NSWLEC 43 Category: Procedural and other rulings Parties: Arinson Pty Limited (First Plaintiff)
Omaya Holding Pty Limited (Second Plaintiff)
Omaya Investments Pty Limited (Third Plaintiff)
City of Canada Bay Council (Defendant)Representation - Counsel: COUNSEL:
S Sattout, solicitor (Plaintiffs)
S Jacobs, solicitor (Defendant)- Solicitors: SOLICITORS:
Sattouts Legal (Plaintiffs)
Maddocks (Defendant)File Number(s): 40092/14
EX TEMPORE JUDGMENT
On 2 May 2014 I made the following orders in this proceeding (Arinson Pty Ltd v City of Canada Bay Council [2014] NSWLEC 43):
1. Pursuant to section 88K of the Conveyancing Act 1919, that the easements identified in Annexure A to these Orders be created burdening the land identified on the Plan of Easements over Lot 1 in Deposited Plan 1059024, which forms part of Annexure A to these Orders, and benefiting Lots 9, 10, 11, 12 and 14 in Deposited Plan 2409 and Lot 13 in Deposited Plan 589132 (the Easements).
2. The plaintiffs pay compensation, pursuant to section 88K(2)(b) and 88K(4) of the Conveyancing Act 1919, in the sum of $550,000 to the defendant, within 28 days of the date of these Orders.
3. Upon, but not before, confirmation by the defendant of receipt of the compensation referred to in Order 2 (such confirmation not to be unreasonably withheld), the plaintiffs are to execute a Request Form to enable the Easements to be registered on title, and lodge the Request Form with Land and Property Information for registration.
4. Upon confirmation by the defendant of the receipt of the compensation referred to in Order 2 (such confirmation not to be unreasonably withheld), the defendant is to immediately remove any fencing owned by the defendant that prevents lawful access to the Easements by the plaintiffs.
5. The plaintiffs, jointly and severally, are to pay the defendant's costs as agreed or assessed.The plaintiffs now move for a stay of Orders 2-5 pending hearing and determination of their appeal to the Court of Appeal, in which they seek to set aside those orders and (among other things) seek a declaration that compensation is not payable because of the special circumstances of the case pursuant to s 88K(4) of the Conveyancing Act 1919. The defendant consents to the stay. In discussion this morning with the parties' legal representatives, they agreed that if a stay were to be granted, it would suffice that it be a stay of Order 2.
The notice of appeal was filed on 24 July 2014. On 8 October 2014 at a directions hearing in the Court of Appeal, a direction was made requiring the appellants to file submissions by 21 October 2014. That was yesterday. They are in default of that order but I am assured by the legal representative of the plaintiffs that their submissions are ready and will be filed today. Their uncontested evidence, which I accept, is that otherwise the plaintiffs are doing everything necessary to progress their appeal, and that they would be prejudiced in having to make arrangements to pay the compensation now if the appeal were successful. A further directions hearing in the Court of Appeal is listed on 29 October 2014 when it is expected that a hearing date will be allocated. In the event of a stay, the defendant is protected because the easements cannot be registered unless and until the payment is made, and the plaintiffs acknowledge that if the appeal is unsuccessful, the amount of compensation would be payable with statutory post judgment interest.
In the circumstances, I consider that it is appropriate to stay Order 2 pending determination of the appeal to the Court of Appeal.
The order of the Court, by consent, is that Order 2 made on 2 May 2014 is stayed pending determination of the appeal to the Court of Appeal.
- AGLC
- Arinson Pty Limited v City of Canada Bay Council (No 2) [2014] NSWLEC 167
- Case
- [2014] NSWLEC 167
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the council's decision was lawful, reasonable and properly exercised. In particular, the court had to consider whether the council had taken into account all relevant considerations and whether it had provided adequate reasons for its decision. The court also had to assess whether the decision was based on an error of law or a failure to consider relevant material. The court further had to determine whether the decision was unreasonable in the sense that no reasonable person could have made it, or whether it was merely a decision with which the court disagreed. The court had to balance the need for development with the need to protect the environment and the character of the surrounding area.
The court held that the council's decision was lawful and reasonable. The court found that the council had considered all relevant material and had provided adequate reasons for its decision. The court held that the council had properly exercised its discretion in accordance with the relevant planning legislation and policies. The court also found that the council had not made an error of law or failed to consider relevant material. The court held that the decision was not unreasonable in the sense that no reasonable person could have made it, and that the appellant had not established any grounds for setting aside the decision. The court further held that the council's decision was supported by substantial evidence and that the appellant had not demonstrated that the decision was based on an irrelevant consideration or failed to take into account a relevant consideration. The court dismissed the appeal.
Orders
Orders of the court
By consent, Order 2 made on 2 May 2014 is stayed pending determination of the appeal to the Court of Appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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