Barnes v Dungog Shire Council - [1999] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION:

Barnes v Dungog Shire Council [1999] NSWLEC 146

PARTIES

APPLICANT:
Barnes

RESPONDENT:
Dungog Shire Council

NUMBER:

10054 of 1999

CORAM:

Talbot J

KEY ISSUES:

Orders :- validity of council order under s 121B EP&A Act

LEGISLATION CITED:

Environmental Planning and Assessment Act s 121B - s 121K

DATES OF HEARING:

06/03/1999

DATE OF JUDGMENT DELIVERY:

06/21/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr I Hemmings (Barrister)
SOLICITORS:
Stacks, The Law Firm
RESPONDENT:
Mr T Bates (Barrister)
SOLICITORS:
Borthwick Wilson & Mitchell

JUDGMENT:

IN THE LAND AND Matter No. 10054 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 21 June 1999

John Barnes
Applicant

v

Dungog Shire Council
Respondent

REASONS FOR JUDGMENT

1. On 31 August 1998 the respondent council forwarded to the applicant John Barnes a notice of its intention to serve an order under s 121 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). Correspondence and a meeting between representatives of the two parties took place. Amongst other issues discussed was whether the applicant had the benefit of existing use rights to carry on the activity about which the council was concerned. On 28 September 1998 a formal order was served. However, on 21 October 1998 the respondent informed the applicant’s representative that the order had been placed on “hold” pending receipt of a proposed development application and satisfactory evidence of existing use rights.

2. It should be noted at the outset that the council at all times has referred to s 121 in relation to the relevant order, whereas the correct reference is 121B. No issue is now taken in this regard.

3. On 17 December 1998 the council forwarded a further notice of intention to serve an order to the applicant.
4. The notice advised the applicant that the terms of the proposed order will be that the applicant, as the owner and occupier shall:-

1. Cease using the premises as a ‘Bulk Store’. Bulk Store is defined under the Environmental Planning and Assessment Act Model Provisions 1980 as “Bulk Store” means a building or place used for the bulk storage of goods, where the goods stored or to be stored are not required for use in a shop or commercial premises on the same parcel of land or on adjoining land in the same ownership.”

2. Remove all bulky materials that are being stored on the premises that fall into the definition of bulk store (ie sawdust, chicken litter etc.)

3. Cease using the premises for storage of waste for which a Licence or notice has not been granted or issued under the Waste Minimisation and Management Act 1995.
4. Remove all waste that is stored on the property.

5. The land referred to in the notice is Lot 2 DP 880530 Parish of Fosterton, County of Gloucester.
6. The notice of intention advised the applicant that it is proposed the order shall be complied with not later than 28 days from…

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: [1999] NSWLEC 146
Decision Date: 21 June 1999

CaseChat Overview and Summary

Barnes v Dungog Shire Council is a case where the applicant, John Barnes, appealed against an order issued by the Dungog Shire Council under the Environmental Planning and Assessment Act 1979 (EP&A Act). The council had issued an order for Barnes to cease using his premises as a 'Bulk Store' and to remove all bulky materials and waste stored on the property. The legal issues in this case were whether the council order was valid, and if it was beyond power or void for uncertainty.

The court found that the council order was invalid because the council failed to hear and consider Barnes' representations prior to issuing the order, as required by s 121J and s 121K of the EP&A Act. The court held that the council's failure to comply with the statutory requirements rendered the order invalid and could not be remedied by the appeal hearing. However, the court found that the council had the power to make Order No. 2, and that it was not void for uncertainty. On the other hand, Order No. 3 was deemed ultra vires as it required compliance with the Waste Minimisation and Management Act, which was beyond the council's power under the EP&A Act. Order No. 4 was not found to be void for uncertainty.

As a result of the court's decision, the appeal was upheld, and the council was ordered to treat the order as a nullity. This case highlights the importance of councils following the statutory requirements when issuing orders under the EP&A Act, as failure to do so can render the order invalid.

Orders