Fokas v Kogarah Council

[2007] NSWLEC 735

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

c. on much of the material filed by Mrs Fokas, namely the entirety of her affidavits on the substance of the matter dated 22 August 2007 and 5 November 2007, and the major part of her affidavit of 8 November 2007 (i.e. up to and including par 31).

6 In fairness to Mrs Fokas’s position, Mr Pickles invited the court to consider the contents of her affidavit of 19 October 2007 and of the balance of her affidavit of 8 November 2007 as submissions on her behalf, in her absence.

7 The material filed by Mrs Fokas deals entirely with issues referable to the merits of the development as approved by the Council. She has particular concerns about its height and bulk and its potential traffic impacts. The development is substantial, and it required Council’s consent, but it is not a designated development, and the processes for its assessment and determination are well known.

8 Mrs Fokas, as one of several objectors to the development application had her concerns considered by Council in its decision-making process, and the development she opposed received the Council’s consent. In these proceedings the merits of that development as such cannot be reviewed. It is not a s98 objector appeal, as she contends, in her affidavit of 8 November at par 32.

9 To upset the Council’s decision in class 4 proceedings, Mrs Fokas has to succeed in having it judicially reviewed for “legal failure” in Council’s discharge of its statutory duties. On considering all the material before the court I can find no evidence of any such failure to consider any matter expressly required to be taken into account in granting consent, nor of any inappropriate consideration. There is nothing among the materials which carries even a vague hint of a Wednesbury unreasonableness point.

10 The relevant principles for the court to apply are admirably summarised in Jagot J’s recent decision in Drake-Brockman v The Ministerfor Planning & Anor [2007] NSWLEC 490 at pars 123ff, and I adopt Her Honour’s summary in its entirety. Those principles are not unknown to Mrs Fokas – see Cowdroy J’s decision in an earlier case known as Fokas v Kogarah Council& Anor [2005] NSWLEC 626.

11 Like Cowdroy J in that matter (at par [18]) I hesitate on this occasion to proceed to summary judgment, or to strike out any well-intentioned proceedings, but good intentions are no substitute for substantive arguments that a Council is in error. To allow this challenge to proceed any further would waste the time and resources of the parties and the Court. On all the material presented by Mrs Fokas, admissible, or not, there is no prospect of her success and I am comfortable that she could not have rescued her case had she remained to argue it today.

12 Accordingly the court grants the relief sought by the Council par 1 of its Notice of Motion, and dismisses the proceedings. In those circumstances there is no need for me to proceed to say anything further regarding the Council’s Security for Costs Application, nor the Applicant’s Notice of Motion, although in essence Mrs Fokas has, incidentally, achieved her stated objective of having this matter concluded today.

13 Both the First and Second Respondents have sought and are entitled, in all the circumstances, to their costs of the proceedings to date.

Orders

14 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.