Fokas v Kogarah Council

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Land and Environment Court


of New South Wales


CITATION: Fokas v Kogarah Council & Anor [2007] NSWLEC 735
PARTIES: APPLICANT
Maria Fokas
FIRST RESPONDENT
Kogarah Council
SECOND RESPONDENT
Maria Peppas
FILE NUMBER(S): 40746 of 2007
CORAM: Sheahan J
KEY ISSUES: Judicial Review :- challenge to development consent - dismissal of proceedings for want of cause of action disclosed
CASES CITED: Drake-Brockman v The Minister for Planning & Anor [2007] NSWLEC 490;
Fokas v Kogarah Council & Anor [2005] NSWLEC 626
DATES OF HEARING: 8 November 2007
EX TEMPORE JUDGMENT DATE: 8 November 2007
LEGAL REPRESENTATIVES: APPLICANT
In person

FIRST RESPONDENT
Mr A Pickles
SOLICITORS
Pike PIke & Fenwick

SECOND RESPONDENT
Ms S Brand, Solicitor of
Herbert Geer & Rundle


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Sheahan J

      8 November 2007

      40746 of 2007 Fokas v Kogarah Council & Anor

      EXTEMPORE JUDGMENT

1 His Honour: These Class 4 proceedings were brought by Mrs Fokas to challenge the validity of Development Consent 324/2006 granted on a deferred commencement basis by the Council to the Second Respondent on 9 July 2007 in respect of a residential flat building to be erected at 7-9 Hampton Court Road, Carlton, some 100 metres from Mrs Fokas’s home.

2 Listed for hearing today were a Notice of Motion by the Council seeking summary dismissal of the proceedings for want of their disclosing a reasonable cause of action, or, in the alternative, an order for security for costs. Last week the Applicant filed a Notice of Motion seeking the hearing and determination of the proceedings as a whole today, on the grounds of “no complexity”.

3 Several directions were given for the filing and service of Points of Claim as required by the Court’s Rules and Practice Notes, but no document in that form has been filed. Mrs Fokas has, however, filed a series of affidavits. The Council filed and served written submissions on 5 November, and when the matter was called this morning I granted Mrs Fokas leave to file in court an affidavit in response. Despite my entreaties in open court, and those of Council’s representatives during a short adjournment, Mrs Fokas withdrew from the hearing and told the court she relied only on her filed written materials. In par 38 of today’s affidavit she says the same thing.

4 Ms Brand, appearing for the Second Respondent, sought only to support the evidence and submissions of the Council on its Notice of Motion, and, on perusal of the affidavit filed by Mrs Fokas in court today, it was clear Mrs Fokas genuinely wanted the matter dealt with to finality today despite her decision not to stay and argue her case.

5 In support of Council’s Notice of Motion, Mr Pickles of Counsel relied

a. on the Council’s filed bundle tendered as Exhibit 1;


b. on affidavits by John Maunder of 2 October 2007, and Adrian Hawkes of 24 September 2007 (both largely concerned with the security for costs application); and

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Details
Case
[2007] NSWLEC 735
Decision Date

CaseChat Overview and Summary

The case of Fokas v Kogarah Council was heard in the Supreme Court of New South Wales. Mrs Fokas brought proceedings against Kogarah Council regarding alleged failures in their planning and assessment processes. The dispute centred on issues concerning the approval of development on a property and the subsequent enforcement of conditions attached to that approval.

The court had to determine several legal issues, including whether the council's actions were within their statutory powers and if procedural fairness was observed. Mrs Fokas also argued that the council had failed to properly consider relevant planning policies and guidelines. The central question was whether the council's decisions were lawful and justifiable under the relevant legislation.

The court found that the council's actions were within their statutory powers and that there was no evidence of procedural unfairness. The court held that the council had appropriately exercised its discretion and had taken into account the relevant planning policies. The judge concluded that the council's decisions were lawful and that there was no basis to interfere with them. Consequently, the court dismissed Mrs Fokas' application.

The formal orders of the court dismissed the proceedings, ordered Mrs Fokas to pay the costs of both respondents, and directed the return of certain documents to the respective parties. The council's solicitors were also instructed to notify Mrs Fokas of the orders.

Orders

Orders of the court

The formal orders of the court are:

1. These class 4 proceedings 40746 of 2007 are dismissed pursuant to Part 13 Rule 5 of the Supreme Court Rules 1970.

2. The Applicant is to pay the costs of both Respondents as agreed or assessed.

3. Exhibit 1 may be returned to the Council, and the Registrar may return to Mrs Fokas the plans and other documents she attached to her affidavit of 8 November 2007 (as sought in par 36 thereof).

4. The solicitors for the Council are ordered to notify Mrs Fokas in writing of these orders, if possible, before close of business today.

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.