Edwards v Sutherland Shire Council - [2006] NSWLEC 128

Reported Decision: (2006) 146 LGERA 199

Land and Environment Court

of New South Wales

CITATION: Edwards v Sutherland Shire Council [2006] NSWLEC 128

PARTIES:
APPLICANT:
Edwards, R H
RESPONDENT:
Sutherland Shire Council

FILE NUMBER(S): 41033 of 2005

CORAM: Biscoe J

KEY ISSUES: Discretion :- whether there is a discretion to refuse to make a compulsory acquisition order under s 124(1) of the Environmental Planning and Assessment Act 1979 (NSW)

LEGISLATION CITED: Contaminated Land Management Act 1997 (NSW), ss 11, 12(1), 12(2), 15, 15(2), 17, 23
Environmental Planning and Assessment Act 1979 (NSW), s 124(1)
Interpretation Act 1897 (NSW), s 23
Interpretation Act 1987 (NSW), s 9(1)
Land and Environment Court Act 1979 (NSW), ss 20(1)(c), 20(2), 20(2)(a), 20(3)(a), 20(3)(b)

CASES CITED: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67;
Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208;
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937;
Byron Shire Council v Greenfields Mountain Pty Ltd (1999) 105 LGERA 445;
Cosmos E-C Commerce Pty Ltd v Bidwell Associates Pty Ltd [2005] NSWCA 81;
Derisi v Vaughan [1983] 3 NSWLR 17;
Dickinson v Perrignon [1973] 1 NSWLR 72;
Ex parte Mullin; Re Wigley (1970) 91 WN (NSW) 497;
F Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306;
Fatsel Pty Ltd v ACR Trading Pty Ltd (1984) 54 LGRA 291;
General Steel Industries Inc v The Commissioner for Railways (NSW) (1964) 112 CLR 125;
Greenfields Mountain Pty Ltd v Byron Shire Council (1998) 100 LGERA 409;
Hepburn v TCN Channel 9 Pty Ltd [1984] 1 NSWLR 386;
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472;
Nedoni Pty Ltd v NSW Minister for Roads [2004] NSWLEC 56;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352;
Port Stephens Council v Fidler (1997) 94 LGERA 298;
Proctor v Jetway Aviation Pty Ltd [1984] NSWLR 166;
Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82;
Swane v Marsh (unreported, NSW CA 18 October 1978, No CA 297 of 1977);
Vaisey v Parramatta City Council (2002) 124 LGERA 270 Warringah Shire Council v Sedevcic (1987) 63 LGRA 361;
Wickstead v Browne (1992) 30 NSWLR 1 (CA);
Wilson Bros (Printers) Pty Ltd v South Sydney City Council [1992] NSWLEC 72;
Wykanak v Rockdale City Council (2001) 113 LGERA 335

DATES OF HEARING: 20/03/06

DATE OF JUDGMENT:
04/05/2006

LEGAL REPRESENTATIVES:
APPLICANT:
Mr S Berveling (Barrister)
SOLICITORS
Willis and Bowring
RESPONDENT:
Mr J Webster SC
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

5 April 2006

41033 of 2005 RUTH HEATHER EDWARDS v SUTHERLAND SHIRE COUNCIL

JUDGMENT

HIS HONOUR

A. INTRODUCTION

1 The applicant claims to be the owner of land located at 98 Woodlands Road, Taren Point (the Land). The land is zoned 6(a) Public Recreation under the Sutherland…

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 Edwards v Sutherland Shire 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: [2006] NSWLEC 128
Decision Date: 04/05/2006

CaseChat Overview and Summary

The case of Edwards v Sutherland Shire Council involved the applicant, Ruth Heather Edwards, seeking a declaration that the Sutherland Shire Council was bound to acquire her land, situated at 98 Woodlands Road, Taren Point, and a consequential compulsory acquisition order. The applicant claimed ownership of the land, which is zoned 6(a) Public Recreation under the Sutherland Shire Local Environmental Plan 2000. Clause 63(1) of the Local Environmental Plan requires the Council to acquire the land upon receipt of a written request from the owner. The Council had received such a request from the applicant but had advised that it would not acquire the land. The central legal issue was whether the Court had discretion under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), s 124, to refuse to make a compulsory acquisition order.

The Court examined the statutory language of s 124 of the EP&A Act and found that the word "may" indicated that the power to make an order could be exercised or not, at the Court's discretion. The Court referred to various cases and authorities, including F Hannan v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306, which confirmed that the Court has a broad discretion under s 124 to mould its intervention in a way that best meets the justice of the situation before it. The Court also considered the case of Port Stephens Council v Fidler (1997) 94 LGERA 298, which suggested that there was no discretion to refuse to make a compulsory acquisition order. However, the Court held that the Fidler decision was not binding and that the earlier authorities confirming the existence of a discretion to refuse relief remained valid.

The Court concluded that the discretionary power under s 124 of the EP&A Act was wide and not fettered or limited to special cases. Although the Council contended that the Court should exercise its discretion to refuse relief due to public interest considerations, the Court found that such a discretion was arguably available in the circumstances of this case. The Court also found that it had a discretion to attach terms to any consequential orders, including a term proposed by the Council that the applicant undertake to be responsible for any action or liability that might be determined by the Environment Protection Authority pursuant to the Contaminated Land Management Act 1997 (NSW) or for any contamination of the land.

Ultimately, the Court decided that it had no discretion under s 124 of the EP&A Act to refuse the declaration and consequential orders claimed by the applicant. However, the Court found that it had a discretion to attach terms to such orders, including the term proposed by the Council. The applicant was successful in the first part of the preliminary issue, while the Council was successful in the second part. Costs of the preliminary issue were ordered to be costs in the cause.

Orders