Fokas v Kogarah Council & Anor

[2008] NSWLEC 74

Land and Environment Court

of New South Wales

CITATION:

Fokas v Kogarah Council & Anor [2008] NSWLEC 74

PARTIES:

APPLICANT:
Maria Fokas

FIRST RESPONDENT:
Kogarah Council

SECOND RESPONDENT:
Energy Australia

FILE NUMBER(S):

40007 of 2008

CORAM:

Lloyd J

KEY ISSUES:

Practice and Procedure :- motion for summary dismissal or strike out - public utility installation - permissible with development consent - modifications sought - no reasonable cause of action - summary judgment

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 96(1A) and s 116F
Uniform Civil Procedure Rules 2005 Pt 13 r 13.4

DATES OF HEARING:

1 February 2008

EX TEMPORE JUDGMENT DATE:

1 February 2008

LEGAL REPRESENTATIVES:

APPLICANT:
In person
SOLICITORS:
N/A

FIRST RESPONDENT:
C A Schofield (solicitor)
SOLICITORS:
Pike Pike & Fenwick

SECOND RESPONDENT:
A E Galasso SC
SOLICITORS:
Clayton Utz

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Friday, 1 February 2008

LEC No. 40007of 2008

FOKAS v KOGARAH COUNCIL & ANOR [2008] NSWLEC 74

EX TEMPORE JUDGMENT

1 HIS HONOUR: The applicant, Mrs Maria Fokas, has commenced proceedings in Class 4 of the Court’s jurisdiction in which she seeks a declaration that a development consent granted by the first respondent, Kogarah Council, for the construction of an electricity zone substation and associated infrastructure at Nos. 260-262 Railway Parade, Kogarah be stayed until the land be rezoned.

2 By a notice of motion filed in court this morning, Mrs Fokas seeks leave to amend the Class 4 application so as to seek a declaration that the consent given be stayed until certain modifications are made to it pursuant to ss 116F and 96(2) of the Environmental Planning and Assessment Act 1979.

3 The second respondent, Energy Australia, now applies by notice of motion that the proceedings be struck out on the ground that no reasonable cause of action is disclosed, or on the alternative ground that the proceedings are frivolous or vexatious.

4 The relevant facts may be briefly described. The affidavit in support of the application, as originally sworn and filed by Mrs Fokas, asserts that the land needed rezoning in order to permit the proposed development. By a further affidavit sworn and filed by Mrs Fokas in support of her application she appears to abandon that assertion. Mrs Fokas claims, however, that in answer to an invitation to make submissions in relation to the development application when it was made, she lodged a submission seeking amendments to the proposal. As I understand it, she now complains that the amendments that she sought were not adopted in the development that was approved.

5 As to the first matter, although the initial claim appears to have been abandoned, it is clear that the proposed development is permissible with consent and that a rezoning of the land is not required. The land is partly within zone residential 2(b) and partly within zone 4(a) of the relevant environmental planning instrument, Kogarah Local Environmental Plan 1998 (“the LEP”). It is clear from the zoning table that public utility installations are permissible with development consent. An electricity substation is a “public utility installation” as that term defined in the dictionary to the LEP, namely “any undertaking carried on by or by authority of, any public authority” for the various purposes including the supply of electricity.

6 As I have said, Mrs Fokas appears to accept now that that is the position. She contends, however, that she is entitled to have her submission for an amendment of the proposal to be considered. She relies upon s 116F and s 96 of the Act. Section 116F states:

This part applies to an application by or on behalf of the Crown under s 96 in the same way as it applies to an application for development consent.

7 Section 96(1A) of the Act provides:

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent...

8 Mrs Fokas says that she is “a person entitled to act on a consent”, and hence entitled to make an application for modification. It is clear, however, that as an objector she is not a person entitled to act on a consent; neither is this designated development in which objectors are given third party appeal rights.

9 At its highest, Mrs Fokas has rights as an objector to make an objection or any other comments in relation to a development application, but she is not “a person entitled to act on a consent”.

10 It is clear, therefore, that the grounds disclosed in the affidavits in support of Ms Fokas’s application do not disclose a cause of action; firstly, there is no need for the land to be rezoned and, secondly, there is no right on the part of Ms Fokas to seek an amendment.

11 Energy Australia relies upon Pt 13, r 13.4 of the Uniform Civil Procedure Rules 2005, which relevantly provides:

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim .

12 As I have already indicated, there is no reasonable cause of action in the application brought by Mrs Fokas and that is sufficient for the Court to make an order that the proceedings be dismissed generally.

13 Energy Australia also submits that the proceedings are frivolous, having regard to previous proceedings brought in this Court by Mrs Fokas and which were dismissed on the ground that no reasonable cause of action was disclosed. I do not need to decide whether or not that is the case. It is sufficient, as I have said, that no reasonable cause of action is disclosed in the present case. The formal order, therefore, is that the Class 4 application is dismissed.

GALASSO: Your Honour, we seek an order for costs.

SCHOFIELD: And we seek an order for costs too of the motion in the proceedings generally, your Honour.

APPLICANT: Your Honour, I disagree with the costs order for the reason that law has to be written a little bit more clear. The law is supposed to be understandable by every person.

HIS HONOUR: Mrs Fokas, the law is clear and any lawyer would have told you that the provisions to which I referred, in particular the provisions of s 96(1A) of the Act, do not refer to a person in your position as an objector.

APPLICANT: As I said, the law should identify the persons that have a right for amendments. That’s not clear, this part of the law. It has to be altered and I refuse to pay anything.

14 HIS HONOUR: I have to say that the usual order in cases like this, in Class 4 of the Court’s jurisdiction, is that costs follow the event. I see no reason to depart from that practice. The respondents have been brought to court and have incurred costs unnecessarily. There will be an order that the applicant, Mrs Fokas, pay the respondents’ costs of the motion and of the proceedings generally.

15 The formal orders are:

(1) The application is dismissed.

(2) The applicant must pay the respondents’ costs of the notice of motion and of the proceedings generally.

I hereby certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

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