Castle Constructions Pty Ltd v North Sydney Council - [2007] NSWLEC 578

Land and Environment Court

of New South Wales

CITATION: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 578

PARTIES:
APPLICANT:
Castle Constructions Pty Ltd
RESPONDENT:
North Sydney Council

FILE NUMBER(S): 11010 of 2007

CORAM: Pain J

KEY ISSUES: Discretion :- whether application to stay remitter to Commissioner pending outcome of application for special leave to appeal to High Court should be granted.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s65, s79C(1)(a)(i)
Judiciary Act 1903 (Cth) s35A
Land and Environment Court Act 1979 s 56A
Land and Environment Court Rules 1996 Pt 1 r 5A
North Sydney Development Control Plan 2002
North Sydney Local Environmental Plan 2001

CASES CITED: Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306;
Carlton Football Club Ltd v Australian Football League (1997) 71 ALJR 1546;
Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468;
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164;
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459;
City of Sydney Council v Satara [2007] NSWCA 148;
Geelong Football Club Ltd v Clifford [2002] VSCA 212;
Heaven’s Door Pty Ltd v Hillpalm Pty Ltd (2003) 126 LGERA 319;
Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [No 1] (1986) 161 CLR 681;
Legal & General Life of Australia Ltd v North Sydney Municipal Council [1990] 10 Leg Rep SL 1;
Minister for Local Government & Anor v South Sydney City Council (No 3) [2002] NSWCA 327;
Morrison v Peacock and Roslyndale Shipping Company Pty Ltd [2001] NSWLEC 142

DATES OF HEARING: 6 September 2007

DATE OF JUDGMENT:
10 September 2007

LEGAL REPRESENTATIVES:
APPLICANT:
Mr T F Robertson SC with Mr J Lazarus
SOLICITORS:
McLachlan Thorpe Partners
RESPONDENT:
Ms H Irish
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 September 2007

11010 of 2005 Castle Constructions Pty Ltd v North Sydney Council
JUDGMENT

1 Her Honour: This is the Council’s Notice of Motion to adjourn the remitter of these Class 1 proceedings to a Commissioner for a rehearing to a mention on 21 December 2007 to allow for final determination by the High Court of the Council’s Application for Special Leave (filed with the High Court on 23 August 2007) and, if leave is granted, the substantive appeal. What is essentially sought is a stay of proceedings pending the outcome of a decision on the special leave application to the High Court.

2 The history of the proceedings to date is set out in the affidavit of Ms Townsend dated 27 August 2007 relied on by the Council. Briefly, these Class 1 proceedings were commenced by the Applicant on 1 September 2005 and amended on 23 November 2005. Following a hearing on 15 - 16 December 2005 the decision of the Senior Commissioner on 12 January 2006 to refuse development consent was appealed by the Applicant pursuant to s 56A of the Land and…

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: [2007] NSWLEC 578
Decision Date: 10 September 2007

CaseChat Overview and Summary

In Castle Constructions Pty Ltd v North Sydney Council, the applicant, Castle Constructions, sought to develop certain properties in North Sydney, while the respondent, North Sydney Council, opposed the development on environmental grounds. The case reached the Land and Environment Court of New South Wales, where the Council sought a stay of the remitter to the Commissioner pending the outcome of its application for special leave to appeal to the High Court. The court had to decide whether to grant the application for a stay, considering factors such as the likelihood of success of the special leave application, the impact on the parties, and the preservation of the subject matter of the litigation. Pain J concluded that the Council had not discharged the onus of proof in the motion and found that the prospects of success for the special leave application were not substantial. The court also found that the Council had not taken sufficient steps to expedite the stay application and that the balance of convenience did not favour granting the stay. The court dismissed the Council's notice of motion.

In summary, the Land and Environment Court of New South Wales dismissed the North Sydney Council's application for a stay of the remitter pending the outcome of its special leave application to the High Court. The court found that the Council had not demonstrated a substantial prospect of success for the special leave application, had not taken sufficient steps to expedite the stay application, and that the balance of convenience did not favour granting the stay. The court concluded that the stay sought by the Council should not be granted and dismissed the notice of motion.

Orders