Armidale Dumaresq Council v Vorhauer - [2012] NSWLEC 154

Land and Environment Court

New South Wales

Medium Neutral Citation: Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154
Hearing dates: 9-10 July 2012
Decision date: 13 July 2012
Jurisdiction: Class 4
Before: Biscoe J
Decision:
(1) Order that respondent remove the shipping container and two transportable construction site offices from the property at Lot 16 DP 242531 known as 36 Uralla Road, Armidale by 13 January 2013; (2) Liberty to apply for an extension of time in Order 1 on 7 days notice; (3) Cross-claim dismissed; (4) Respondent to pay applicant's costs of the summons; (5) Cross-claimants to pay cross-respondents' costs of the cross-claim; (6) No order as to Attorney General's costs.

Catchwords: CIVIL ENFORCEMENT - shipping container and two transportable construction site offices on respondent's land without development consent - council seeks order that they be removed under s 123 Environmental Planning and Assessment Act 1979 - constitutional challenge to the power and legitimacy of local councils and NSW Parliament and to the jurisdiction of the Court - allegations that council committed numerous criminal offences.
Legislation Cited: Anti-Discrimination Act 1977 Part 2
Commonwealth of Australia Constitution Act cl 5, ss 28, 51, 71, 76, 77, 80, 106-109, 114, 128
Constitution Act 1902 s 5
Constitution Alteration (Local Government) Bill 1988 (Cth)
Crimes Act 1900
Crimes Act 1914 (Cth)
Environmental Planning and Assessment Act 1979 ss 121B, 123
Invasion of Privacy Act 1971 (Qld)
Judiciary Act 1903 (Cth) ss 39, 78A, 78B
Justices Act 1921-1975 (SA) s 27
Land and Environment Court Act 1979 ss 5, 6, 7, 8, 16, 20
Local Government Act 1993 Ch 9
Racial Discrimination Act 1975 (Cth)
Racial Discrimination Amendment Act 1983 (Cth)
Cases Cited: Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, 144 LGERA 43
Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, 73 NSWLR 196
Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3, 240 CLR 242
Coco v The Queen [1994] HCA 15, 179 CLR 427
Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363
Mobil Oil Australia Pty Ltd v The State of Victoria [2002] HCA 27, 211 CLR 1
NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000; Arnold v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120
Palerang Council v Banfield (No 2) [2012] NSWLEC 158
Plenty v Dillon [1991] HCA 5, 171 CLR 635
The Queen v Phillips [1970] HCA 50, 125 CLR 93
R v Vorhauer [2002] NSWCCA 483
University of Wollongong v Metwally [1984] HCA 74, 158 CLR 447
Viskauskas v Niland [1983] HCA 15, 153 CLR 280
Vorhauer v R [2007] NSWCCA 125
Category: Principal judgment
Parties: Armidale Dumaresq Council (Applicant)
Florence Amelia Vorhauer (Respondent)
Florence Amelia Vorhauer (First Cross-claimant)
Lisa Amelia Vorhauer (Second Cross-claimant)
Armidale Dumaresq Council (First Cross-respondent)
Katherine Ferris (Second Cross-respondent) Attorney General for NSW (Intervenor)
Representation: Mr C S…

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: [2012] NSWLEC 154
Decision Date: 13 July 2012

CaseChat Overview and Summary

In the matter of Armidale Dumaresq Council versus Vorhauer, the court was tasked with adjudicating a dispute regarding the removal of certain structures from a property in Armidale. The Council sought an order for the respondent to remove a shipping container and two transportable construction site offices from a specified property. This action arose from the respondent's failure to comply with a prior order to remove these structures, which were deemed to be in breach of the council's planning scheme. The respondent argued that there were valid reasons for the delay in removal and sought various forms of relief, including an extension of time.

The central legal issues the court needed to resolve included whether the respondent had a valid basis for not complying with the original removal order, the appropriateness of granting an extension of time, and the costs associated with the summons and cross-claim. The court had to determine if the respondent's arguments constituted sufficient grounds for an extension and whether the Council's application for costs should be granted. The cross-claim, which was dismissed, pertained to the respondent's claim against the cross-claimants for indemnity.

The court found that the respondent had not provided sufficient grounds to warrant an extension of time for the removal of the structures. The respondent's reasons for delay were deemed inadequate, and the Council's planning scheme had not been adequately complied with. Consequently, the court ordered the respondent to remove the shipping container and two transportable construction site offices from the property by a specified date. Additionally, the court ruled that the respondent must pay the Council's costs of the summons, while the cross-claimants were ordered to pay the cross-respondents' costs of the cross-claim. No order was made regarding the Attorney General's costs.

Orders

Orders of the court

(1) Order that respondent remove the shipping container and two transportable construction site offices from the property at Lot 16 DP 242531 known as 36 Uralla Road, Armidale by 13 January 2013; (2) Liberty to apply for an extension of time in Order 1 on 7 days notice; (3) Cross-claim dismissed; (4) Respondent to pay applicant's costs of the summons; (5) Cross-claimants to pay cross-respondents' costs of the cross-claim; (6) No order as to Attorney General's costs.

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:	Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154
Hearing dates:	9-10 July 2012
Decision date:	13 July 2012
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	(1) Order that respondent remove the shipping container and two transportable construction site offices from the property at Lot 16 DP 242531 known as 36 Uralla Road, Armidale by 13 January 2013; (2) Liberty to apply for an extension of time in Order 1 on 7 days notice; (3) Cross-claim dismissed; (4) Respondent to pay applicant's costs of the summons; (5) Cross-claimants to pay cross-respondents' costs of the cross-claim; (6) No order as to Attorney General's costs.
Catchwords:	CIVIL ENFORCEMENT - shipping container and two transportable construction site offices on respondent's land without development consent - council seeks order that they be removed under s 123 Environmental Planning and Assessment Act 1979 - constitutional challenge to the power and legitimacy of local councils and NSW Parliament and to the jurisdiction of the Court - allegations that council committed numerous criminal offences.
Legislation Cited:	Anti-Discrimination Act 1977 Part 2 Commonwealth of Australia Constitution Act cl 5, ss 28, 51, 71, 76, 77, 80, 106-109, 114, 128 Constitution Act 1902 s 5 Constitution Alteration (Local Government) Bill 1988 (Cth) Crimes Act 1900 Crimes Act 1914 (Cth) Environmental Planning and Assessment Act 1979 ss 121B, 123 Invasion of Privacy Act 1971 (Qld) Judiciary Act 1903 (Cth) ss 39, 78A, 78B Justices Act 1921-1975 (SA) s 27 Land and Environment Court Act 1979 ss 5, 6, 7, 8, 16, 20 Local Government Act 1993 Ch 9 Racial Discrimination Act 1975 (Cth) Racial Discrimination Amendment Act 1983 (Cth)
Cases Cited:	Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, 144 LGERA 43 Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, 73 NSWLR 196 Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3, 240 CLR 242 Coco v The Queen [1994] HCA 15, 179 CLR 427 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363 Mobil Oil Australia Pty Ltd v The State of Victoria [2002] HCA 27, 211 CLR 1 NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000; Arnold v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 Palerang Council v Banfield (No 2) [2012] NSWLEC 158 Plenty v Dillon [1991] HCA 5, 171 CLR 635 The Queen v Phillips [1970] HCA 50, 125 CLR 93 R v Vorhauer [2002] NSWCCA 483 University of Wollongong v Metwally [1984] HCA 74, 158 CLR 447 Viskauskas v Niland [1983] HCA 15, 153 CLR 280 Vorhauer v R [2007] NSWCCA 125
Category:	Principal judgment
Parties:	Armidale Dumaresq Council (Applicant) Florence Amelia Vorhauer (Respondent) Florence Amelia Vorhauer (First Cross-claimant) Lisa Amelia Vorhauer (Second Cross-claimant) Armidale Dumaresq Council (First Cross-respondent) Katherine Ferris (Second Cross-respondent) Attorney General for NSW (Intervenor)
Representation:	Mr C S…