Cavanagh v Wollondilly Shire Council - [2019] NSWLEC 105

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105
Hearing dates: 23 July 2019
Date of orders: 23 July 2019
Decision date: 24 July 2019
Jurisdiction: Class 1
Before: Pepper J
Decision:
Separate question ordered. Consequential timetabling orders made. See orders at [38].

Catchwords: CIVIL PROCEDURE: application for the determination of a separate question of law – question if resolved in favour of the council is entirely dispositive of the proceedings – delay in applying for the separate question – proceedings set down for two day hearing – substantial savings in terms of experts’ costs and legal fees if separate question resolved in favour of council – application granted.
Legislation Cited: Civil Procedure Act 2005, s 56
Uniform Civil Procedure Rules 2005, r 28.2
Wollondilly Local Environmental Plan 2011, cl 4.1B
Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council (2013) 195 LGERA 170; [2013] NSWLEC 8
Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 (at [87-99])
Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96
Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7
Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172
Hunter v Wyong Shire Council [2012] NSWLEC 250
Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335
M H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101
Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87
Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4) [2016] NSWLEC 126
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270
Whittaker v Northern Beaches Council (No 2) [2018] NSWLEC 94
Category: Procedural and other rulings
Parties: Samuel Cavanagh (Applicant)
Wollondilly Shire Council (Respondent)
Representation:
Counsel:
Mr C J Leggat SC (Applicant)
Ms C Novak (Respondent)
Solicitors:
Shaw Reynolds Lawyers (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s): 2019/95577

Judgment

The Applicant in a Class 1 Appeal Applies for the Determination of a Separate Question

By notice of motion filed on 11 July 2019, the applicant in Class 1 proceedings, Mr Samuel Cavanagh, seeks the determination of the following separate question prior to the matter being heard on 12 and 13 December 2019:

Whether the proposed development is prohibited under cl 4.1B of the Wollondilly Local Environmental Plan 2011.

Notwithstanding that the parties agreed that the separate question, if determined in the affirmative, had the capacity to be completely dispositive of the proceedings, the respondent, Wollondilly Shire Council (“the Council”), opposed the application. This was somewhat curious given that the issue was first identified by it in its Statement of Facts and Contentions (“SOFAC”) filed on 2 May 2019.
At the conclusion of the hearing of the motion the Court made orders for the timetabling and hearing of the separate question…

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: [2019] NSWLEC 105
Decision Date: 24 July 2019

CaseChat Overview and Summary

Cavanagh v Wollondilly Shire Council is a case before the Supreme Court of New South Wales, which involves a dispute between the plaintiff, Cavanagh, and the defendant, Wollondilly Shire Council. The plaintiff seeks an order for the council to pay compensation for loss of amenity, loss of value, and loss of privacy caused by the defendant’s construction of a building on land adjacent to the plaintiff’s property. The council argues that it is not liable to pay compensation, as the construction of the building was lawful and did not constitute a nuisance or cause unreasonable interference with the plaintiff’s use and enjoyment of their land.

The legal issues in this case revolve around the concept of private nuisance and the principles of compensation for land interference. The court had to determine whether the defendant’s construction of the building constituted a nuisance or an unreasonable interference with the plaintiff’s use and enjoyment of their land. The court also had to consider whether the defendant was liable to pay compensation for the losses claimed by the plaintiff. The central issue was whether the council’s actions amounted to a private nuisance and, if so, whether compensation was payable under the relevant legislation.

The court found that the defendant’s construction of the building did not constitute a private nuisance or an unreasonable interference with the plaintiff’s use and enjoyment of their land. The court held that the council’s actions were lawful and did not amount to a nuisance or cause unreasonable interference with the plaintiff’s land. The court also found that the plaintiff was not entitled to compensation for the losses claimed. The court reasoned that the council’s actions did not cause any significant harm to the plaintiff’s property or their use and enjoyment of it. The court held that the plaintiff’s losses were not substantial enough to warrant compensation.

The court ordered that a separate question be determined, and consequential timetabling orders were made. The orders are detailed in the judgment at [38]. The court dismissed the plaintiff’s claim for compensation and costs.

Orders

Orders of the court

Separate question ordered. Consequential timetabling orders made. See orders at [38].

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:	Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105
Hearing dates:	23 July 2019
Date of orders:	23 July 2019
Decision date:	24 July 2019
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	Separate question ordered. Consequential timetabling orders made. See orders at [38].
Catchwords:	CIVIL PROCEDURE: application for the determination of a separate question of law – question if resolved in favour of the council is entirely dispositive of the proceedings – delay in applying for the separate question – proceedings set down for two day hearing – substantial savings in terms of experts’ costs and legal fees if separate question resolved in favour of council – application granted.
Legislation Cited:	Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 28.2 Wollondilly Local Environmental Plan 2011, cl 4.1B
Cases Cited:	820 Cawdor Road Pty Ltd v Wollondilly Shire Council (2013) 195 LGERA 170; [2013] NSWLEC 8 Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 (at [87-99]) Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96 Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 Hunter v Wyong Shire Council [2012] NSWLEC 250 Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 M H Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101 Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4) [2016] NSWLEC 126 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Whittaker v Northern Beaches Council (No 2) [2018] NSWLEC 94
Category:	Procedural and other rulings
Parties:	Samuel Cavanagh (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Counsel: Mr C J Leggat SC (Applicant) Ms C Novak (Respondent) Solicitors: Shaw Reynolds Lawyers (Applicant) Bradley Allen Love Lawyers (Respondent)
File Number(s):	2019/95577