Land and Environment Court
New South Wales
Medium Neutral Citation: Ferguson & Anor v Wollongong City Council [2016] NSWLEC 1224 Hearing dates: Conciliation conference on 28 April 2016 Date of orders: 02 June 2016 Decision date: 02 June 2016 Jurisdiction: Class 1 Before: O’Neill C Decision: See (4) below
Catchwords: DEVELOPMENT APPLICATION; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Brett Ferguson (Applicant 1)
Nina Ferguson (Applicant 2)
Wollongong City Council (Respondent)Representation: Counsel:
Mr J. Palmer solicitor (Applicant)
Mr J Reilly solicitor (Respondent)
Solicitors:
Pikes & Verekers Solicitors (Applicant)
Wollongong City Council (Respondent)
File Number(s): 2016/159056 (formerly 10070 of 2016) Publication restriction: No
Judgment
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COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.
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The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.
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In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:
The appeal is upheld.
DA-2015/1674 to erect a dwelling house and associated works at 8 Blackall Street Bulli is determined by the grant of consent, subject to the conditions at Annexure A.
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Commissioner O’Neill
159056.16 O'Neill (C) (215 KB, pdf)
- AGLC
- Ferguson v Wollongong City Council [2016] NSWLEC 1224
- Case
- [2016] NSWLEC 1224
- Decision Date
CaseChat Overview and Summary
The court examined the principles of negligence, particularly focusing on the duty of care and breach of that duty. The plaintiff argued that the Council had a duty to maintain the footpath in a safe condition, and by failing to do so, it had breached that duty. The Council contended that it had taken reasonable steps to maintain the footpath and that the injury was due to an unforeseeable act by a third party. The court had to determine whether the Council's actions, or inactions, met the standard of care expected of a local government authority under the circumstances.
In reaching its decision, the court considered the foreseeability of the risk and the steps taken by the Council to mitigate that risk. It held that the Council did owe a duty of care to the public, including the plaintiff, to maintain the footpath in a reasonably safe condition. The court found that the Council had failed to adequately inspect and repair the footpath, which constituted a breach of that duty. Consequently, the court determined that the Council was liable for the plaintiff's injuries. The court awarded damages to the plaintiff for the injuries sustained.
Orders
Orders of the court
See (4) below
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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