Caristo v Campbelltown City Council

Case •

[2013] NSWLEC 13

•

01 February 2013

Land and Environment Court


New South Wales

Medium Neutral Citation: Caristo v Campbelltown City Council [2013] NSWLEC 13
Hearing dates:1 February 2013
Decision date: 01 February 2013
Jurisdiction:Class 4
Before: Pain J
Decision:

1. By consent the hearing on 6-7 February 2013 to be vacated.

2. By consent pursuant to s 149B Civil Procedure Act 2005 the proceedings be transferred to the NSW Supreme Court.

3. Each party to pay its own costs.

Catchwords: PROCEDURE - court does not have jurisdiction to consider hardship aspects of the Land Acquisition (Just Terms Compensation) Act 1997 - matter transferred to Supreme Court of NSW
Legislation Cited: Civil Procedure Act 2005 s 149B
Environmental Planning Assessment Act 1979 s 27
Land Acquisition (Just Terms Compensation) Act 1991 s 8
Land and Environment Court Act 1979 s 19
Cases Cited: National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; 71 LGRA 286
Category:Procedural and other rulings
Parties: Guiseppe Caristo (First Applicant)
Frank Murdocca (Second Applicant)
Maryanne Murdocca (Third Applicant)
Campbelltown City Council (Respondent)
Representation: Ms V McWilliams (Applicants)
Mr D Baird (solicitor) (Respondent)
Ron Kramer Associates (Applicants)
Marsdens Law Group (Respondent)
File Number(s):40534 of 2012

EX TEMPORE Judgment

  1. This matter has been referred from the Registrar's list today. An order is sought by consent that the hearing dates be vacated on 6 and 7 February 2013 in this matter and that pursuant to s 149B of the Civil Procedure Act 2005 (the CP Act) the proceedings be transferred to the Supreme Court of New South Wales. I essentially agree with and adopt the submissions of counsel for the Applicant in these proceedings and on the motion about why these orders are necessary. It is clear that the Court does not have jurisdiction or ancillary jurisdiction to entertain the matter. I will make the order sought today.

  1. I will try to summarise what has been put to me as it seems this is the first occasion on which this particular issue might have been before the Court. The focus of the Class 4 application before the Court was the Campbelltown Local Environmental Plan (the LEP) and cl 52 of that plan which provides on its face for the acquisition of certain land. That is specified in cl 52(1)(c) of that LEP and cl 2 provides that "The public authority concerned must acquire the land".

  1. Interestingly, however, there is a major caveat placed on those words by s 27 of the Environmental Planning Assessment Act 1979 (the EPA Act) which I understand was included in 2006. That now provides in s 27(3) that "An environmental planning instrument is not to be construed as requiring an authority of the State to acquire land except as required by Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991" (the Just Terms Act). It appears that the effect of that provision, regardless of any other issue raised before me, is that in matters of this type the application to a court in relation to hardship matters has to be under the Just Terms Act rather than the EPA Act. The Just Terms Act prevails over any other Act as s 8 of the Just Terms Act provides. It takes precedence over the EPA Act to the extent that they conflict.

  1. That has consequences for whether this Court has jurisdiction. The Court has limited jurisdiction conferred by statute. Section 16(1A) of the Land and Environment Court Act 1979 (the Court Act) states the Court has jurisdiction if a matter is ancillary to a matter that falls within jurisdiction. The exercise of ancillary jurisdiction has to be based on existing jurisdiction otherwise vested in the Court.

  1. Given the provisions of the LEP as impacted by s 27(3) of the EPA Act the Court does not have jurisdiction. I was also referred to National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; 71 LGRA 286 which specifies that the exercise of ancillary jurisdiction requires that it must be necessary for the resolution of the question before the Court. No such question can arise in this particular statutory regime.

  1. I was also taken to s 19 of the Court Act which delineates the Court's Class 3 jurisdiction. Section 19(e) refers to claims for compensation by reason of the acquisition of land as referred to in Div 2 but the Just Terms Act otherwise does not appear in that section. As pointed out in s 20, which defines the Court's Class 4 jurisdiction relating to environmental planning and protection and development contract civil enforcement cases, the Just Terms Act does not appear in the long list of legislation set out in subsection (1). Under those provisions there is no jurisdiction in Class 3 or Class 4 for the Court to entertain this matter.

  1. For completeness, I note that s 24 of the Court Act refers to claims for compensation and compulsory acquisition cases. There is specific reference to aspects of the Just Terms Act but that does not give rise to a cause of action such as the subject of the Class 4 proceedings before me. The hardship provisions which the Applicant seeks to raise in s 21(1)(b), 23 and 24 of the Just Terms Act are not referred to in s 24.

  1. I will make the consent orders as already indicated. It is appropriate that each party pay its own costs of the motion today.

Orders

  1. The Court makes the following orders:

(1)   By consent the hearing on 6-7 February 2013 to be vacated.

(2) By consent pursuant to s 149B Civil Procedure Act 2005 the proceedings be transferred to the NSW Supreme Court.

(3)   Each party to pay its own costs.

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Decision last updated: 07 March 2013

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