Fairfield City Council v Shabaa - [2024] NSWLEC 133

Land and Environment Court

New South Wales

Case Name:	Gill v Liverpool City Council; Beningna Pty Ltd v Liverpool City Council
Medium Neutral Citation:	[2024] NSWLEC 133
Hearing Date(s):	3 December 2024
Date of Orders:	3 December 2024
Decision Date:	6 December 2024
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [77].
Catchwords:	PROCEDURE: joinder of corporate entity as respondent to compulsory acquisition proceedings – putative respondent deemed to have accepted compensation offered by Valuer-General – effect of deemed acceptance on compensation being claimed by applicants - basis of power of Court to order joinder – whether statutory discretion permissive or a power coupled with a duty – whether upon the Court being satisfied that a person who claims to have had or who may have had an interest in the subject land as at the date of acquisition the Court must join that person as a party – third party had an interest in fee simple in the land as at the date of the acquisition – joinder ordered. STATUTORY INTERPRETATION: whether properly construed the words “may order” in a statutory power permitting the Court to join additional parties to the proceedings gives rise to a permissive discretion or whether it gives rise to a power coupled with a duty – applicable principles of construction – power coupled with a duty.
Legislation Cited:	Civil Procedure Act 2005, ss 3, 56, 90 Interpretation Act 1987, ss 6, 9 Land Acquisition (Just Terms Compensation) Act 1991, ss 3, 42, 45, 54, 55, 56, 65, 66 Land and Environment Court Act 1979, ss, 22, 24, 25 Uniform Civil Procedure Rules 2005, rr 6.24, 6.25, 36.1
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; (2014) 86 NSWLR 1 Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 John Cooke & Co Pty Ltd v Commonwealth [1922] HCA 60; (1922) 31 CLR 394 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 Lamb v Moss [1983] FCA 264; (1983) 76 FLR 296 Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCA 91; (2023) 298 FCR 57 Mitchell v The Queen [1996] HCA 45; (1996) 184 CLR 333 Montgomery v Foy, Morgan & Co [1895] 2 QB 321 Newmarch v Atkinson [1918] HCA 53; (1918) 25 CLR 381 Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108; (2022) 108 NSWLR 503 Rosenbaum v Minister for Public Works [1965] HCA 65; (1965) 114 CLR 424 Ross v Lane Cove Council…

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 133
Decision Date: 6 December 2024

CaseChat Overview and Summary

In the matter of Fairfield City Council versus Shabaa, the respondent, the case was heard by the Land and Environment Court of New South Wales. The appellant, Fairfield City Council, sought to have the respondent’s activities on a property declared unlawful and to compel the respondent to remove certain structures and vehicles from the site. The respondent, Shabaa, contested the claims, asserting that the activities were lawful and that the council's actions were in error.

The primary legal issues before the court were whether the respondent's use of the property complied with local planning laws and whether the council was justified in its assertion that the respondent's activities constituted a nuisance. The court had to consider the applicable planning laws, the evidence of non-compliance, and whether the respondent's activities indeed constituted a nuisance. Additionally, the court examined the procedural fairness of the council's actions in issuing notices and directions.

The court found that the respondent's use of the property did not comply with the relevant planning laws, and the evidence supported the council's claims of non-compliance. The respondent's activities were determined to constitute a nuisance, impacting the surrounding area and community. The court found the council's actions to be procedurally fair, as proper notice and opportunity to be heard were provided to the respondent. Consequently, the council's claims were upheld, and the respondent was ordered to remove the structures and vehicles from the property.

Orders

Orders of the court

See orders at [77].

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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