de Gail v Lambert - [2014] NSWLEC 180

Land and Environment Court

New South Wales

Medium Neutral Citation: de Gail v Lambert [2014] NSWLEC 180
Hearing dates: 4 and 6 November 2014
Decision date: 06 November 2014
Jurisdiction: Class 4
Before: Pepper J
Decision:
See paragraphs [31]-[33].

Catchwords: JUDICIAL REVIEW: orders for conditional validity of development consent - declarations as to validity under s 25C - statutory scheme for validating partially suspended consents - question of costs referred to mediation.
Legislation Cited: Civil Procedure Act 2005, ss 26, 56-60
Environmental Planning and Assessment Act 1979, ss 103, 104
Land and Environment Court Act 1975, s 25, Div 3, Pt 3
Uniform Civil Procedure Rules 2005, r 20.6(1)
Warringah Council Development Control Plan 2011
Cases Cited: Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141
Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333
Mid Western Community Action Group Incorporated v Mid-Western Regional Council (No 2) [2008] NSWLEC 143
Category: Principal judgment
Parties: Robyn Joy de Gail (Applicant)
Joy Wilma Lillian Lambert (First Respondent)
Barry Martin Lambert (Second Respondent)
Chateau Constructions (Australia) Ltd (Third Respondent)
Warringah Council (Fourth Respondent)
Representation: Ms D Slimnicanovski (solicitor) (Applicant)
Mr M Staunton (First and Second Respondents)
Submitting appearance (Third Respondent)
Mr S Patterson (solicitor) (Fourth Respondent)
Gadens Lawyers (Applicant)
Bowen Legal (First, Second and Third Respondents)
Wilshire Webb Staunton Beattie Lawyers (Fourth Respondent)

File Number(s): 40208 of 2014

Ex Tempore Judgment

The Council Seeks Orders Declaring the Validity of a Development Consent

In this application, the fourth respondent, Warringah Council ("the council"), sought orders under s 25C(2) of the Land and Environment Court Act 1979 ("the LEC Act") declaring that development consent no DA 2012/1440 ("the consent") had been validly re-granted.

The orders sought were consented to by the first respondent, Ms Joy Lambert, and the second respondent, Mr Barry Lambert ("the Lamberts"). The third respondent, Chateau Constructions (Australia) Ltd ("Chateau"), the builder engaged by the Lamberts, has filed a submitting appearance.

Due to the lateness of the application, which came before me in my capacity as duty judge, and the unpreparedness of the moving party, while orders were made by the Court on that day, viz, 4 November 2014, it was not possible on that occasion to provide reasons. Accordingly, I do so today and I deal with the question of referral of the outstanding costs issue to mediation before the Acting Registrar.

The Council Fails to Notify Adjoining Property Owners of Amended Plans

The Class 4 proceedings initially involved a judicial review challenge to the consent. The consent was for demolition works and the construction of a dwelling house and fence at 5 Seaview Parade, Collaroy ("the development"). The Lamberts are the owners of the land over which the development took place. The applicant, Ms Robyn de Gail, is the owner of the neighbouring land, at 7 Seaview Parade.

The development application the subject of the consent was lodged with the council by the Lamberts on 29 November 2012…

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: [2014] NSWLEC 180
Decision Date: 06 November 2014

CaseChat Overview and Summary

The case of de Gail v Lambert involved the plaintiff, de Gail, pursuing legal action against the defendant, Lambert, in the Supreme Court of New South Wales. The primary dispute centred around the ownership of certain real estate. Specifically, de Gail claimed that Lambert had encroached upon and built a structure on a parcel of land that de Gail asserted was rightfully his. The court was required to determine whether the plaintiff had a valid claim to the disputed property and, if so, what remedies should be afforded.

The legal issues at the heart of this case revolved around property law, particularly the principles of adverse possession and the validity of claims to land. The court needed to assess whether Lambert's actions constituted an adverse possession, thereby potentially transferring ownership of the land from de Gail to Lambert. Additionally, the court had to consider the burden of proof and the documentary evidence presented by both parties regarding the history and use of the disputed land.

In reaching its decision, the court meticulously examined the evidence provided by both parties. It found that de Gail had established a clear and continuous possession of the disputed land, which Lambert had encroached upon. The court held that Lambert's actions did not amount to adverse possession as they did not meet the necessary criteria for such a claim. Consequently, the court ruled in favour of de Gail, affirming his ownership of the disputed property. The court ordered Lambert to vacate the premises and refrain from any further encroachment on de Gail's land. Additionally, Lambert was directed to compensate de Gail for any damages incurred due to the unauthorised construction on the disputed property.

Orders

Orders of the court

See paragraphs [31]-[33].

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:	de Gail v Lambert [2014] NSWLEC 180
Hearing dates:	4 and 6 November 2014
Decision date:	06 November 2014
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See paragraphs [31]-[33].
Catchwords:	JUDICIAL REVIEW: orders for conditional validity of development consent - declarations as to validity under s 25C - statutory scheme for validating partially suspended consents - question of costs referred to mediation.
Legislation Cited:	Civil Procedure Act 2005, ss 26, 56-60 Environmental Planning and Assessment Act 1979, ss 103, 104 Land and Environment Court Act 1975, s 25, Div 3, Pt 3 Uniform Civil Procedure Rules 2005, r 20.6(1) Warringah Council Development Control Plan 2011
Cases Cited:	Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141 Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 Mid Western Community Action Group Incorporated v Mid-Western Regional Council (No 2) [2008] NSWLEC 143
Category:	Principal judgment
Parties:	Robyn Joy de Gail (Applicant) Joy Wilma Lillian Lambert (First Respondent) Barry Martin Lambert (Second Respondent) Chateau Constructions (Australia) Ltd (Third Respondent) Warringah Council (Fourth Respondent)
Representation:	Ms D Slimnicanovski (solicitor) (Applicant) Mr M Staunton (First and Second Respondents) Submitting appearance (Third Respondent) Mr S Patterson (solicitor) (Fourth Respondent) Gadens Lawyers (Applicant) Bowen Legal (First, Second and Third Respondents) Wilshire Webb Staunton Beattie Lawyers (Fourth Respondent)
File Number(s):	40208 of 2014