D'Arcy v Bega Valley Shire Council [No 2]

[2003] NSWLEC 183

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Land and Environment Court

of New South Wales

CITATION:	D'Arcy v Bega Valley Shire Council [No 2] [2003] NSWLEC 183
PARTIES:	APPLICANT John Kevin D'Arcy RESPONDENT Bega Valley Shire Council
FILE NUMBER(S):	10945 of 2001
CORAM:	Pain J
KEY ISSUES:	Question of Law :- previous judgments delivered on questions of law in these Class 1 proceedings and related Class 4 proceedings - whether questions of law posed should be answered
LEGISLATION CITED:	Land and Environment Court Act 1979 s 58
CASES CITED:	Bega Valley Shire Council v D'Arcy [2002] NSWLEC 225; D'Arcy v Bega Valley Shire Council [2002] NSWLEC 88
DATES OF HEARING:	21/07/2003
DATE OF JUDGMENT:	07/22/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr J D'Arcy (in person) RESPONDENT Mr M McMahon (solicitor) SOLICITORS M.E. McMahon & Associates

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10945 of 2001

Pain J

22 July 2003
JOHN KEVIN D'ARCY
Applicant
v
BEGA VALLEY SHIRE COUNCIL
Respondent
Judgment


1. In order to understand the proceedings in which I am currently giving a decision it is first necessary to set out a brief history of the matter to date. I note that Mr D’Arcy, the Applicant, has represented himself throughout these proceedings. Mr McMahon, solicitor, has represented Bega Valley Shire Council (the Council).

2. The Applicant commenced Class 1 proceedings in matter number 10945 of 2001 concerning an application for subdivision which the Council refused. The Council sought answers to several preliminary questions of law in relation to which I gave judgment on 26 June 2002 ( D’Arcy v Bega Valley Shire Council [2002] NSWLEC 88). I gave an extensive history of the matter in that judgment which I will not repeat here. I made several findings on questions of law in the Class 1 Application, but declined to answer one question, question number three. As those findings were not a bar to the Class 1 proceedings being continued a hearing date was set for the Class 1 matter on 15 and 16 October 2002.

3. In the meantime, the Council filed and served Class 4 proceedings seeking numerous declarations in relation to the Applicant's land, the subject of the Class 1 Application, which was ultimately set down to be heard at the same time as the Applicant’s Class 1 hearing.

4. One of the issues raised in the Class 4 proceedings was in similar terms to question three in the Class 1 Notice of Motion raising preliminary questions of law which I previously declined to answer. I considered after argument that I could determine the issues posed in the Class 4 Application filed by the Council. Given the nature of the issues raised, I considered it was appropriate to hear the Class 4 matter first, before the Class 1 matter was heard, and this was heard on 15 October 2002.

5. My reasoning in the Class 4 proceedings was given orally on 16 October 2002 and also in writing ( Bega Valley Shire Council v D’Arcy [2002] NSWLEC 225). In that decision I made some of the declarations sought by the Council, but not all. At the conclusion of my judgment in the Class 4 proceedings I made declarations 3 and 4 to the effect that:

3. Pursuant to cl 14(3) portion 50 has ceased to be part of an existing holding for the purpose of the LEP

4. The further subdivision of portion 50 to create lots for dwelling houses is prohibited under the existing provisions of the LEP .


6. It appeared that there was no legal basis on which the Applicant could proceed with the Class 1 Application. The Class 1 matter was not then dismissed, but was stood over to enable the Applicant to decide if he wished to appeal my decision in the Class 4 matter.

7. The Applicant has now filed questions of law in the Class 1 proceedings on 10 April 2003 seeking answers to two questions as follows:

1. Are the judgments handed down by Justice Pain on 26/6/02 [case no 10945 of 2001] still legally standing and binding.

2. Does the Class 4 declarations [no 40599 of 2002] repeal the class one [no 10945 of 2001] Judgment [26/6/2002] on the permissibility of the proposed development DA 01/1022.


8. The Applicant argues these questions must be answered because there is conflict between part of my findings on question 1 of the preliminary questions of law in the Class 1 proceedings and the reasoning and declarations made in the Class 4 proceedings. The Applicant submitted that because of that conflict his Class 1 proceedings could still be permissible. I note that the Applicant also made a number of submissions in relation to parts of the evidence of the Council’s officer, Mr Barry, in the Class 4 matter, which evidence I accepted in consequent findings which I made in the Class 4 judgment, to the effect that he, the Applicant, did not agree with these.

9. I have considerable difficulty accepting the submissions of the Applicant that I should answer the questions that he has posed. Firstly, it appears to me the appropriate course for the Applicant to take was to appeal to the Court of Appeal of New South Wales pursuant to s 58 of the Land and Environment Court Act 1979 in relation to the Class 4 proceedings if he considers there is legal error or ambiguity in my judgment. The Applicant submitted that he understood that I was unable to change my judgments, and stated that he was simply seeking clarification and that it was the role of the Court to decide matters finally before it, including all matters in controversy between the parties which, according to the Applicant, has not been done. In my view, it is not the Court’s role to provide the legal interpretation of judgments that the Applicant seeks in the questions he has posed.

10. Secondly, it is clear from the terms of the judgment in the Class 4 proceedings that I made declarations 3 and 4. These declarations make clear that the subdivision application the subject of the Class 1 proceedings by the Applicant cannot proceed.

11. As I have already said, I did not discontinue the Class 1 proceedings at the conclusion of the Class 4 proceedings on 16 October 2002 as I considered it was appropriate for the Applicant to consider if he wished to appeal my decision. It is not appropriate that I answer the two questions posed by the Applicant, nor do I express any view as to whether the arguments he wishes to raise are even open to him as he has not overcome the substantial hurdle he faces of demonstrating the Court has the power to answer the questions he raises.

12. In my view, the Class 4 judgment which I gave is clear and final. That judgment stands in the absence of a successful appeal in the Court of Appeal. The effect of declarations 3 and 4 is that the Applicant's Class 1 proceedings cannot proceed.

13. That concludes my judgment in this matter. I would propose that the formal order I ought to make is that the Class 1 application be dismissed. However, I will not make any formal orders today on the basis that the Applicant wants to consider his position.

14. I list the matter before me for mention by teleconference at 9.30 am on 12 August 2003.