Blacktown City Council v Concato - [2018] NSWSC 1039

Supreme Court

New South Wales

Medium Neutral Citation: Blacktown City Council v Concato [2018] NSWSC 1039
Hearing dates: 3 July 2018
Date of orders: 06 July 2018
Decision date: 06 July 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
Stay granted on terms

Catchwords: ADMINISTRATIVE LAW – practice and procedure - stay of administrative action pending judicial review - source of power - discretionary considerations
Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 19, 20, 23, 24, 37, 41, 42, 44, 51, 61, 66
State and Environmental Planning Policy (Sydney Region Growth Centres) 2006 (NSW)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil procedure Rules 2005 (NSW), r 51.44
Cases Cited: Council of the City of Gosford v Cunningham [1997] NSWCA 81
DJ Singh v DH Singh & Ors [2017] NSWCA 234
El Boustani v The Minister Administering the Environmental Planning and Assessment Act 1979 [2014] NSWCA 33
Gosford City Council v Valuer-General (1996) 90 LGERA 413
Hoy v Coffs Harbour City Council [2016] NSWCA 257; 218 LGERA 411
Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1
Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 77 ALJR 727
Re Kerry [2010] NSWCA 232
Secretary of the Treasury v Public Service Association [2014] NSWCA 14
Texts Cited: Ritchie’s Uniform Civil Procedure 2005 (NSW)
New South Wales Government Gazette, No. 26 of 9 March 2018
Category: Consequential orders (other than Costs)
Parties: Blacktown City Council (Plaintiff/Applicant)
Lodovico Antonio Concato (First Defendant and Respondent)
Vilma Concato (Second Defendant and Respondent)
Office of the Valuer-General (Third Defendant and Respondent)
Representation: Counsel:
P Tomasetti SC with A Hemmings (Applicant)
K Lindeman (First and Second Respondents)
Solicitors:
Maddocks Lawyers (Applicant)
M Everingham Office of the Crown Solicitor (Third Respondent)

File Number(s): 2018/193605

Judgment

HIS HONOUR: By summons filed on 22 June 2018, Blacktown City Council (“the plaintiff”) seeks judicial review under s 69 Supreme Court Act 1970 (NSW) (“Supreme Court Act”) of a determination of compensation made by the Valuer-General under s 41 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“the Act”) on 7 June 2018.
The first and second defendants are the former landowners (“the landowners”) and the third defendant is the Office of the Valuer-General. The matter was referred to me by the Registrar on 3 July 2018 for the hearing of the plaintiff’s notice of motion filed on 26 June 2018 seeking interim relief maintaining the status quo pending the disposition of the principal proceedings.
The plaintiff was represented by Mr Tomasettis SC appearing with Ms Hemmings of counsel; the landowners by Ms K Lindeman of counsel, and the third defendant by Mr Everingham solicitor of the Office of the Crown Solicitor. The third defendant submits to the order of the Court save as to costs. The landowners oppose the interim relief sought.

Background

The acquired land is a parcel of land at Rouse Hill. Its area is 2.023 hectares (5 acres) which, after…

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: [2018] NSWSC 1039
Decision Date: 06 July 2018

CaseChat Overview and Summary

Blacktown City Council brought a claim against Concato, seeking a judicial review of a decision to grant a permit for a commercial development. The dispute arose from the alleged procedural unfairness in the decision-making process. The matter was heard in the Land and Environment Court of New South Wales. The primary legal issue the court had to address was whether the court should grant a stay of the administrative action pending the outcome of the judicial review. Another issue was the source of the power to grant such a stay and the discretionary considerations that should be taken into account in deciding whether to grant a stay.

The court considered the principles governing the grant of a stay of administrative action pending judicial review. It examined the relevant statutory provisions and case law to determine the source of its power to grant a stay. The court also considered the discretionary factors that should be weighed in deciding whether to grant a stay, such as the likelihood of success on the merits, the balance of convenience, and the public interest. The court concluded that it had the power to grant a stay under the relevant statutory provisions and that the discretionary considerations weighed in favour of granting a stay. The court found that there was a real prospect that the permit decision was made in breach of procedural fairness and that the balance of convenience and the public interest favoured granting a stay. The court ordered a stay of the permit pending the outcome of the judicial review.

Orders