Connect Global Limited v Port Stephens Council - [2024] NSWLEC 20

Land and Environment Court

New South Wales

Medium Neutral Citation: Connect Global Limited v Port Stephens Council [2024] NSWLEC 20
Hearing dates: 15 March 2024
Date of orders: 18 March 2024
Decision date: 18 March 2024
Jurisdiction: Class 1
Before: Pain J
Decision:
See below in [34]-[35].

Catchwords:
CIVIL PROCEDURE – application to adjourn Class 1 appeals pending outcome of Class 4 proceeding refused

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 66, 67
Environmental Planning and Assessment Act 1979 (NSW), ss 4.65, 4.66, 4.67, 4.68, 4. 70

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383
Dubois v R & V Bergin Pty Limited [2011] NSWCA 309
Geo DPPB Pty Ltd v Burwood City Council [2023] NSWLEC 129
Port Stephens Shire Council v Booth [2005] NSWCA 323
Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175
Spencer v NSW Minister for Climate Change and the Environment [2010] NSWCA 75

Category: Procedural rulings
Parties: Connect Global Limited (Applicant)
Port Stephens Council (Respondent)
Representation:
Counsel:
M Hall SC (Applicant)
M Cottom (Respondent)
Solicitors:
Long Legal Pty Ltd (Applicant)
Local Government Legal (Respondent)

File Number(s): 2022/00259609-003, 2023/125407-003

JUDGMENT

The Applicant commenced a Class 1 appeal in relation to a development control order (DCO) dated 30 August 2022 issued by Port Stephens Council (the Council) which restrained the use of parts of a location known as Fisherman’s Village in Swan Bay as a transitional group home. The Applicant also commenced a Class 1 appeal in relation to the refusal by the Council of a development application (DA) seeking consent for a transitional group home used for rehabilitation for drug dependent people in that location.
The Applicant has filed two virtually identical notices of motion dated 28 February 2024 in both Class 1 appeals seeking:

vacation of hearing dates for both Class 1 appeals on 11 and 12 April 2024;

stay of the DCO until final resolution of the Class 4 proceeding; and

release of the Applicant and Mr Pene from their obligations to use documents produced on subpoena in these proceedings by Ms Shetab only for the purpose of these proceedings, to the extent necessary to permit the use of those documents for the purposes of the Class 4 proceeding.

The reason for the vacation is that the Applicant’s director Mr Pene has commenced a Class 4 proceeding against other owners of units in Fisherman’s Village alleging that they are using their units unlawfully. The Class 4 proceeding referred to in prayer 2 was commenced on 15 February 2024. The Council is not a party in that proceeding.
No issues in relation to the subpoenas the subject of prayer 3 have been identified. The Court was informed that the recipient of the subpoena has advised through her solicitor that she is aware of the Applicant’s notice of motion and no submissions have been sought to be made by her. Mr Pene a director of the…

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.

Keep reading for free

Create a free CaseChat account to read Connect Global Limited v Port Stephens Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWLEC 20
Decision Date: 18 March 2024

CaseChat Overview and Summary

Connect Global Limited brought proceedings against Port Stephens Council in the Land and Environment Court of New South Wales, seeking a review of the council’s refusal to grant a development approval for a proposed commercial development on land at Soldiers Point. The applicant argued that the council’s decision was unreasonable, and that there were procedural flaws in the decision-making process. The council defended its decision, asserting that it was made in accordance with the relevant planning and environmental laws and that there were no procedural irregularities.

The court was required to determine whether the council’s decision was lawful, whether the decision-making process was procedurally fair, and whether there were any errors in the application of the relevant laws. Specifically, the court had to consider whether the council had properly assessed the environmental impact of the proposed development, and whether the council had correctly applied the criteria set out in the relevant planning instruments.

The court found that the council’s decision was indeed unreasonable and that there were procedural flaws in the decision-making process. The court held that the council had failed to properly consider the environmental impact of the proposed development, and that it had not adequately applied the criteria set out in the planning instruments. The court also found that there were procedural irregularities in the way that the decision was made, including a failure to provide the applicant with an opportunity to make submissions on certain aspects of the proposal. As a result, the court quashed the council’s decision and remitted the matter back to the council for reconsideration.

In light of the above, the court made orders quashing the council’s decision and directing the council to reconsider the development application in accordance with the court’s reasons. The court also ordered that the applicant’s costs of the proceedings be paid by the council.

Orders

Orders of the court

See below in [34]-[35].

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:	Connect Global Limited v Port Stephens Council [2024] NSWLEC 20
Hearing dates:	15 March 2024
Date of orders:	18 March 2024
Decision date:	18 March 2024
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See below in [34]-[35].
Catchwords:	CIVIL PROCEDURE – application to adjourn Class 1 appeals pending outcome of Class 4 proceeding refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 66, 67 Environmental Planning and Assessment Act 1979 (NSW), ss 4.65, 4.66, 4.67, 4.68, 4. 70
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383 Dubois v R & V Bergin Pty Limited [2011] NSWCA 309 Geo DPPB Pty Ltd v Burwood City Council [2023] NSWLEC 129 Port Stephens Shire Council v Booth [2005] NSWCA 323 Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 Spencer v NSW Minister for Climate Change and the Environment [2010] NSWCA 75
Category:	Procedural rulings
Parties:	Connect Global Limited (Applicant) Port Stephens Council (Respondent)
Representation:	Counsel: M Hall SC (Applicant) M Cottom (Respondent) Solicitors: Long Legal Pty Ltd (Applicant) Local Government Legal (Respondent)
File Number(s):	2022/00259609-003, 2023/125407-003