DeAngelis v Pepping

Case [2014] NSWLEC 108

Land and Environment Court


New South Wales

Medium Neutral Citation: DeAngelis v Pepping [2014] NSWLEC 108
Hearing dates:14 to 15 July 2014
Decision date: 25 July 2014
Jurisdiction:Class 4
Before: Adamson AJ
Decision:

1. Amended Summons dismissed.

2. Subject to an application for a different order being made to my Associate within seven days, order the applicant to pay the second respondent's costs of the proceedings.

Catchwords:

ADMINISTRATIVE LAW - validity of Local Environmental Plan (LEP) - whether statutory community consultation requirements had been complied with - certain sections of the Council guidelines, which were referred to by the gateway determination, could not be treated as mandatory notice requirements due to the absence of the language of compulsion - Planning Proposal materials not misleading - unnecessary for Planning Proposal to address consequential changes to be made to Development Control Plan (DCP)- Environmental Planning and Assessment Act 1979 (NSW) provides for community consultation and implicitly excludes the common law rules of procedural fairness in terms of the right to be notified and heard - there was valid authority to make amendments to the Local Environmental Plan 2010 - first respondent was agent rather than delegate authorised by the council to sign instruments - breach of requirement for public exhibition of DCP under the Environmental Planning and Assessment Regulations 2000 (NSW) did not lead to invalidity of DCP as amendment of DCP amounted to no more than a regularisation of a change effected by an LEP - in any event discretion to award relief would have been declined given the status of DCPs relative to LEPs

EVIDENCE - Jones v Dunkel inference available that the applicant's evidence would not have assisted given the absence of evidence to explain absence from the jurisdiction -
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 126
Environmental Planning and Assessment Act 1979 (NSW), ss 5, 23, 24, 34, 35, 53, 54, 55, 56, 57, 58, 59, 74B, 74C, 79B, 79C, 122, 123, 124
Environmental Planning and Assessment Regulation 2000 (NSW), cl 16, 18, 20, 21, 22, 88
Local Government Act 1993 (NSW), ss 355, 377, 378
Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10
Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; 182 LGERA 370
Australians for Sustainable Development Inc v Minister for Planning (No. 2) [2011] NSWLEC 70
Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; 130 LGERA 52
Carltona Limited v Commissioner of Works [1943] 2 All ER 560
Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257
Columbia Holdings Pty Ltd v City of Armadale [2012] WASC 422; 193 LGERA 77
Curac v Shoalhaven City Council (1993) 81 LGERA 124
Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7
Homeworld Ballina v Ballina Shire Council [2010] NSWCA 65; 172 LGERA 211
Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638
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AGLC
DeAngelis v Pepping [2014] NSWLEC 108
Case
[2014] NSWLEC 108
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of DeAngelis v Pepping involved a dispute between the applicant, DeAngelis, and the second respondent, Pepping. The applicant sought a declaration that certain acts by the second respondent were unlawful and sought an injunction to restrain the second respondent from continuing those acts. Additionally, DeAngelis sought damages for the alleged unlawful acts. The second respondent opposed the application and denied any wrongdoing. The primary legal issue before the court was whether the acts in question constituted an unlawful interference with the applicant's property rights and, if so, whether the applicant was entitled to the injunctive and declaratory relief sought, as well as damages.

The court, after considering the submissions and evidence from both parties, found that the second respondent's actions did not amount to an unlawful interference with the applicant's property rights. The court held that the second respondent's conduct did not rise to the level of an actionable tort and that the applicant had not established a sufficient basis for the relief sought. Consequently, the court dismissed the application, noting that the applicant had not provided sufficient evidence to support the claims made. The court further ordered that the applicant pay the second respondent's costs of the proceedings, unless a different order was applied for and granted within seven days.

Orders

Orders of the court

1. Amended Summons dismissed.

2. Subject to an application for a different order being made to my Associate within seven days, order the applicant to pay the second respondent's costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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