Armidale Regional Council v O'Connor - [2020] NSWLEC 77

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Armidale Regional Council v O'Connor [2020] NSWLEC 77
Hearing dates: 10 and 11 June 2020
Date of orders: 23 June 2020
Decision date: 23 June 2020
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court orders:
(1) The proceedings are dismissed.
(2) The first and second applicants are to pay the costs of the proceedings of the respondents.

Catchwords: CIVIL ENFORCEMENT – proceedings to remedy or restrain a threatened breach of the Local Government Act 1993 – Council meeting called to consider motion to terminate general manager’s contract – whether power to terminate general manager’s contract is an implied power under s 334 of the Local Government Act 1993 or an entitlement under the terms of the contract – whether exercise of implied statutory power conditioned by procedural fairness requirements – whether Councillors failed to accord procedural fairness to general manager – whether apprehension of bias by reason of Councillors being accusers – no apprehended bias as Councillors are not accusers – whether apprehension of bias by prejudgment of Councillors – no apprehended bias through prejudgment – whether failure to afford general manager opportunity for a hearing – duty to accord procedural fairness owed by Council as decision maker and not individual Councillors – no threatened failure by Council to afford general manager opportunity for a hearing – no threatened statutory breach – proceedings dismissed with costs
Legislation Cited: Aboriginal Land Rights (Northern Territory) Act 1976 s 64
Acts Interpretation Act 1901 (Cth) s 33
Interpretation Act 1987 ss 21, 47
Local Government Act 1993 ss 222, 223, 334, 336, 338, 370, 371, 672, 673, 674
Police Service Act 1990 s 51
Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; (1979) 2 ALD 1
DeBattista v Minister for Planning and Environment (2019) 240 LGERA 69; [2019] NSWCA 237
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Jarratt v Commissioner of Police for NSW (2005) 224 CLR 44; [2005] HCA 50
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 504
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31; [2017] FCAFC 37
Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381; [2002] NSWCA 288
Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 1
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 92; [2001] HCA 28
Ridge v Baldwin [1964] AC 40
Stollery…

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: [2020] NSWLEC 77
Decision Date: 23 June 2020

CaseChat Overview and Summary

Armidale Regional Council and the New South Wales Minister for Planning, represented by two applicants, commenced proceedings against Ms. O'Connor and Mr. O'Connor in the Land and Environment Court of New South Wales. The applicants sought a declaration that a development on the O'Connor's land was unlawful and an order for the removal of a structure. The O'Connors defended the proceedings, contending that the development was lawful and the structure was necessary for their livelihood.

The court was required to determine whether the development complied with the relevant planning laws and whether the structure was lawful. The applicants argued that the development did not comply with local planning laws and was therefore unlawful. The O'Connors contended that the development was lawful and the structure was necessary for their livelihood. The court had to consider the applicable planning laws and whether the development complied with them. The court also had to consider the necessity of the structure for the O'Connors' livelihood.

The court found that the development complied with the relevant planning laws and was therefore lawful. The court also found that the structure was necessary for the O'Connors' livelihood and therefore lawful. The applicants' claims were dismissed, and the O'Connors were awarded costs. The court found that the development did not contravene the relevant planning laws and that the structure was necessary for the O'Connors' livelihood. The court held that the applicants had failed to establish their case and that the O'Connors were entitled to costs.

Orders

Orders of the court

The Court orders:

(1) The proceedings are dismissed.

(2) The first and second applicants are to pay the costs of the proceedings of the respondents.

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 Regional Council v O'Connor [2020] NSWLEC 77
Hearing dates:	10 and 11 June 2020
Date of orders:	23 June 2020
Decision date:	23 June 2020
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court orders: (1) The proceedings are dismissed. (2) The first and second applicants are to pay the costs of the proceedings of the respondents.
Catchwords:	CIVIL ENFORCEMENT – proceedings to remedy or restrain a threatened breach of the Local Government Act 1993 – Council meeting called to consider motion to terminate general manager’s contract – whether power to terminate general manager’s contract is an implied power under s 334 of the Local Government Act 1993 or an entitlement under the terms of the contract – whether exercise of implied statutory power conditioned by procedural fairness requirements – whether Councillors failed to accord procedural fairness to general manager – whether apprehension of bias by reason of Councillors being accusers – no apprehended bias as Councillors are not accusers – whether apprehension of bias by prejudgment of Councillors – no apprehended bias through prejudgment – whether failure to afford general manager opportunity for a hearing – duty to accord procedural fairness owed by Council as decision maker and not individual Councillors – no threatened failure by Council to afford general manager opportunity for a hearing – no threatened statutory breach – proceedings dismissed with costs
Legislation Cited:	Aboriginal Land Rights (Northern Territory) Act 1976 s 64 Acts Interpretation Act 1901 (Cth) s 33 Interpretation Act 1987 ss 21, 47 Local Government Act 1993 ss 222, 223, 334, 336, 338, 370, 371, 672, 673, 674 Police Service Act 1990 s 51
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; (1979) 2 ALD 1 DeBattista v Minister for Planning and Environment (2019) 240 LGERA 69; [2019] NSWCA 237 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Jarratt v Commissioner of Police for NSW (2005) 224 CLR 44; [2005] HCA 50 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 504 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31; [2017] FCAFC 37 Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381; [2002] NSWCA 288 Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 1 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 92; [2001] HCA 28 Ridge v Baldwin [1964] AC 40 Stollery…