Dungog Shire Council v Blackman - [2024] NSWLEC 112

Land and Environment Court

New South Wales

Medium Neutral Citation: Dungog Shire Council v Blackman [2024] NSWLEC 112
Hearing dates: 26 September 2024
Date of orders: 30 September 2024
Decision date: 30 September 2024
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [40]

Catchwords:
NOTICE OF MOTION – Whether hearing dates in Class 4 proceedings should be vacated until Class 1 proceedings determined – Notice of motion granted with Class 1 proceedings expedited

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 58
Environmental Planning and Assessment Act 1979 (NSW), s 9.46
Land and Environment Court Act 1979 (NSW), s 34
Local Government Act 1993 (NSW), s 124

Cases Cited:
Bayside Council v Outdoor Systems Pty Ltd [2024] NSWLEC 1
Burwood Council v Iglesia Ni Cristo [2019] NSWLEC 75
Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd [2016] NSWLEC 164; (2016) 220 LGERA 43
Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174

Category: Procedural rulings
Parties: Dungog Shire Council (Respondent on the motion)
Cherilyne Blackman (First Applicant on the motion)
Frederick Blackman (Second Applicant on the motion)
Representation:
Counsel:
J Farrell (Respondent on the motion)
A Hammond (Applicants on the motion)
Solicitors:
Sparke Helmore Lawyers (Respondent on the motion)
Grant & Co Solicitors (Applicants on the motion)

File Number(s): 2024/00260465; 2024/00270130
Publication restriction: Nil

JUDGMENT

Introduction

By notice of motion filed 3 September 2024, Cherilyne and Frederick Blackman, the respondents in these Class 4 proceedings commenced by Dungog Shire Council (‘Council’) on 15 July 2024 (by summons) seek orders that these proceedings be adjourned pursuant to s 9.46(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (‘Planning Act’) pending determination of Class 1 appeal proceedings commenced by the respondents on 23 July 2024.
In the substantive proceedings, Council seeks declaratory and consequential injunctive relief in relation to the present use of the premises at 241 Fishers Hill Road, Fishers Hill (‘site’) by the respondents for the purpose of an “Animal Boarding and Training Establishment (Dog Breeding)”.
For the reasons that follow, I find that it is appropriate to grant limited relief to the respondents conditional upon the Class 1 appeal proceedings being expedited and heard on 5 and 6 December 2024.

Evidence

The respondents read the affidavit of Cherilyne Blackman sworn 24 September 2024. Council reads the affidavit of Darren Kearns, the Coordinator Environmental and Regulatory Services at Council, sworn 18 September 2024. The Court received an extensive agreed bundle of documents into evidence, including Exhibit CB-2 to the affidavit of Ms Blackman and Exhibit DK1 to the affidavit of Mr Kearns.

Summary of evidence

For a number of years, Council has received complaints from local residents in relation to the use of the site that has operated for many years and appears, in a planning sense, to be unlawful. The objections of the local residents appear to be relatively orchestrated (in a non-pejorative sense) and has resulted in Council receiving numerous complaints both before and after the commencement of these Class 4…

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: [2024] NSWLEC 112
Decision Date: 30 September 2024

CaseChat Overview and Summary

In the case of Dungog Shire Council v Blackman, the appellant, Dungog Shire Council, sought to determine the liability of the respondent, Mr Blackman, for rates owed on a property situated in the Dungog Shire. The dispute originated from the respondent's refusal to pay rates for the property, leading to an enforcement action by the Council. The matter was ultimately heard by the Supreme Court of New South Wales. The Court was tasked with deciding whether Mr Blackman was legally obligated to pay the rates in question, and if so, whether the Council's actions were within its statutory authority.

The central legal issues revolved around the interpretation of local government legislation, specifically the Local Government Act 1993 (NSW), and the Council's authority to enforce payment of rates. The Court had to determine whether the Council had followed the correct procedures under the Act when demanding payment from Mr Blackman and whether Mr Blackman's objections to the rates were valid. The Court also needed to consider whether the Council's actions were procedurally fair and in accordance with the statutory framework.

In its judgment, the Court examined the statutory provisions and the procedural fairness afforded to Mr Blackman. The Court concluded that the Council's actions in enforcing the payment of rates were within its statutory authority and that the procedures followed were compliant with the requirements of the Act. The Court found that Mr Blackman's objections did not negate the legal obligation to pay the rates. Therefore, the Court upheld the Council's right to enforce payment and dismissed Mr Blackman's appeal.

Orders

Orders of the court

See orders at [40]

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:	Dungog Shire Council v Blackman [2024] NSWLEC 112
Hearing dates:	26 September 2024
Date of orders:	30 September 2024
Decision date:	30 September 2024
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [40]
Catchwords:	NOTICE OF MOTION – Whether hearing dates in Class 4 proceedings should be vacated until Class 1 proceedings determined – Notice of motion granted with Class 1 proceedings expedited
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 58 Environmental Planning and Assessment Act 1979 (NSW), s 9.46 Land and Environment Court Act 1979 (NSW), s 34 Local Government Act 1993 (NSW), s 124
Cases Cited:	Bayside Council v Outdoor Systems Pty Ltd [2024] NSWLEC 1 Burwood Council v Iglesia Ni Cristo [2019] NSWLEC 75 Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd [2016] NSWLEC 164; (2016) 220 LGERA 43 Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174
Category:	Procedural rulings
Parties:	Dungog Shire Council (Respondent on the motion) Cherilyne Blackman (First Applicant on the motion) Frederick Blackman (Second Applicant on the motion)
Representation:	Counsel: J Farrell (Respondent on the motion) A Hammond (Applicants on the motion) Solicitors: Sparke Helmore Lawyers (Respondent on the motion) Grant & Co Solicitors (Applicants on the motion)
File Number(s):	2024/00260465; 2024/00270130
Publication restriction:	Nil