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…

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: [2008] NSWLEC 74
Decision Date: 1 February 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Maria Fokas, the applicant, sought to challenge a development consent granted by Kogarah Council for the construction of an electricity substation and related infrastructure. She sought either a stay of the consent until the land was rezoned or amendments to the consent. The second respondent, Energy Australia, filed a motion to strike out the proceedings, arguing that no reasonable cause of action was disclosed or, alternatively, that the proceedings were frivolous or vexatious.

The key legal issues before the Court were whether the development consent required rezoning of the land, and if the applicant had standing to seek amendments to the consent. The Court examined the Environmental Planning and Assessment Act 1979 and the Uniform Civil Procedure Rules 2005 to determine the applicant's rights and obligations. The Court found that the proposed development was permissible with consent, and a rezoning was not required as the land was within zones permitting public utility installations. The Court also found that the applicant, as an objector, did not have the right to seek amendments to the consent under the Act.

The Court dismissed the applicant's application and granted the motion to strike out the proceedings. The Court found that no reasonable cause of action was disclosed in the applicant's claims. Additionally, the Court noted that the proceedings were frivolous, as the applicant had previously brought similar proceedings that were dismissed on the same grounds. The Court ordered that the applicant pay the respondents' costs of the motion and the proceedings generally. The formal orders were that the application was dismissed and that the applicant must pay the respondents' costs.

Orders