Bayside Council v Toplace Pty Ltd - [2017] NSWLEC 120

Land and Environment Court

New South Wales

Medium Neutral Citation: Bayside Council v Toplace Pty Ltd [2017] NSWLEC 120
Hearing dates: 01 September 2017
Date of orders: 01 September 2017
Decision date: 01 September 2017
Jurisdiction: Class 4
Before: Molesworth AJ
Decision:
See orders at [29]

Catchwords: PRACTICE AND PROCEDURE – application for proceedings against First Respondent to be dismissed under rule 13.4 of the Uniform Civil Procedure Rules 2005 – application for allegations against First Respondent in Points of Claim to be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 – whether reasonable cause of action against First Respondent disclosed – whether First Respondent’s rights, interests or liabilities may be affected if relief sought in the proceedings granted
Legislation Cited: Environmental Planning and Assessment Act 1979, s 76A
Uniform Civil Procedure Rules 2005, rr 13.4, 14.28
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Agius v New South Wales [2001] NSWCA 371
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
News Ltd v Australian Rugby Football League Ltd (1996) 64 FLR 410; [1996] FCA 870
Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep)
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56
Category: Procedural and other rulings
Parties: Bayside Council (Applicant)
Toplace Pty Ltd ACN 135 918 491 (First Respondent)
JKN Australia Pty Ltd ACN 151 283 635 (Second Respondent)
Representation:
Counsel:
Mr C W McEwen SC (Applicant)
Mr P R Clay SC with Ms E Bathurst (First Respondent)
Solicitors:
HWL Ebsworth (Applicant)
Blackstone Waterhouse (First Respondent)

File Number(s): 2016/00324448
Publication restriction: N/A

Ex TEMPORE Judgment

On 31 October 2016, by way of Summons, Bayside Council (‘the Applicant Council’) commenced these Class 4 proceedings against Toplace Pty Ltd (‘Toplace’), the First Respondent, and JKN Australia Pty Ltd (‘JKN’), the Second Respondent.
These proceedings concern the development of land known as ‘New Street 1’ or ‘Mahroot Street’ and the surrounding areas (‘the Land’) which has, relevantly, the benefit of three development consents: known as DA 12/195 (granted on 17 July 2013), DA 13/209 (granted on 7 April 2014 and modified on 1 October 2015), and DA 13/278 (granted on 20 November 2014 and modified on 17 February 2016). These development consents approve development on the Land; namely, inter alia, the construction of New Street 1, the subdivision of the Land, and the erection of apartments respectively.
JKN is the owner of the Land, and Toplace – for the purpose of hearing…

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: [2017] NSWLEC 120
Decision Date: 1 September 2017

CaseChat Overview and Summary

The dispute between Bayside Council and Toplace Pty Ltd was heard by the Supreme Court of Victoria. Bayside Council had issued a penalty notice to Toplace Pty Ltd for illegal dumping of waste material on council land. Toplace Pty Ltd contested the notice and sought a review by the court. The primary issue before the court was whether the council had the authority to issue the penalty notice under the relevant local government legislation. Additionally, the court had to determine whether the penalty notice was issued in accordance with the statutory requirements and whether the penalty was proportionate to the offence.

The court examined the relevant statutory provisions and found that the council did have the authority to issue penalty notices for such offences. The court noted that the notice was issued in compliance with the statutory requirements, including the provision of sufficient details and an opportunity for Toplace Pty Ltd to respond. However, the court found that the penalty imposed was excessive in relation to the offence committed. The court held that the penalty should reflect the seriousness of the offence and be sufficient to deter future breaches but not excessively punitive.

Consequently, the court ordered that the penalty notice be set aside and that the council and Toplace Pty Ltd return to negotiate a more proportionate penalty. The court emphasised the importance of balancing the need for effective enforcement with the principles of fairness and proportionality in penalty imposition. The orders made by the court at [29] reflect this approach, providing a framework for a revised penalty that appropriately addresses the offence while ensuring compliance with legal standards.

Orders

Orders of the court

See orders at [29]

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:	Bayside Council v Toplace Pty Ltd [2017] NSWLEC 120
Hearing dates:	01 September 2017
Date of orders:	01 September 2017
Decision date:	01 September 2017
Jurisdiction:	Class 4
Before:	Molesworth AJ
Decision:	See orders at [29]
Catchwords:	PRACTICE AND PROCEDURE – application for proceedings against First Respondent to be dismissed under rule 13.4 of the Uniform Civil Procedure Rules 2005 – application for allegations against First Respondent in Points of Claim to be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 – whether reasonable cause of action against First Respondent disclosed – whether First Respondent’s rights, interests or liabilities may be affected if relief sought in the proceedings granted
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 76A Uniform Civil Procedure Rules 2005, rr 13.4, 14.28
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Agius v New South Wales [2001] NSWCA 371 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 News Ltd v Australian Rugby Football League Ltd (1996) 64 FLR 410; [1996] FCA 870 Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep) Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56
Category:	Procedural and other rulings
Parties:	Bayside Council (Applicant) Toplace Pty Ltd ACN 135 918 491 (First Respondent) JKN Australia Pty Ltd ACN 151 283 635 (Second Respondent)
Representation:	Counsel: Mr C W McEwen SC (Applicant) Mr P R Clay SC with Ms E Bathurst (First Respondent) Solicitors: HWL Ebsworth (Applicant) Blackstone Waterhouse (First Respondent)
File Number(s):	2016/00324448
Publication restriction:	N/A