Green v Kogarah Municipal Council

[1999] NSWLEC 149

Land and Environment Court

of New South Wales

CITATION:	Green v Kogarah Municipal Council [1999] NSWLEC 149
PARTIES	APPLICANT Ross Winston GREEN
RESPONDENT Kogarah Municipal Council
NUMBER:	40047 of 1999
CORAM:	Sheahan J
KEY ISSUES:	Interlocutory Relief :- balance of convenience
LEGISLATION CITED:
DATES OF HEARING:	03/04/1999
EX TEMPORE JUDGMENT DATE:	03/04/1999
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson, Barrister SOLICITORS Mr T Edwards of Brock Partners RESPONDENT SOLICITORS Mrs L Finn of Abbott Tout

JUDGMENT:

IN THE LAND AND Matter No: 40047 of 1999

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 4 March 1999

ROSS WINSTON GREEN

Applicant

v

KOGARAH MUNICIPAL COUNCIL

Respondent

JUDGMENT

1. In this matter the applicant, Mr Green, seeks in the substantive proceedings various declarations and orders and by notice of motion returnable instanter and filed in Court today seeks the making of those declarations and orders in respect of a linen plan of subdivision on an interlocutory basis.

2. By dint of the history of the matter suffice to say Mr Green has the benefit of a development consent which will lapse on 6 March 1999.

3. As part of the subject dual occupancy development a subdivision certificate and linen plan were requested of the council and the request was dealt with by the council on 1 March.

4. Council resolved by seven votes to three to issue the certificate and release the relevant linen plan, but, in circumstances which are of some controversy between the parties, the three councillors who voted against that resolution have sought its rescission.

5. It became apparent to Mr Green following the meeting, at which he was present and heard the resolution in his favour carried, that that rescission motion would not be dealt with by the council until its meeting scheduled for 8 March, some two days after the development consent will lapse.

6. In terms of the prayers for relief in the class 4 application I am satisfied that there is an arguable case to be tried on behalf of the applicant, but that alone is not sufficient to ground a decision by the Court to grant interlocutory relief.

7. The Court needs to be satisfied in order to grant such relief that the balance of convenience is in favour of the granting of the relief in order to protect the status quo.

8. The submissions of Mr Wilson on behalf of the applicant are that the balance of convenience dictates that the Court should order the issue of the linen plan, which will thereupon be lodged, and, in the event of the resolution to rescind being carried, Mr Wilson undertakes on behalf of the applicant that the dealing will be withdrawn from the Land Titles Office.

9. My attention has been drawn to the case of Panagopoulos v Willoughby City Council , a 1992 decision of Bignold J, reported in 78 LGRA 270, and although the opportunity has not been found to study that case in detail it does seem to me to deal with a different factual situation and is not all that helpful to my consideration of the factual position in this matter.

10. In that case it was held that the communication of the council's determination of Mr Panagopoulos' application was complete upon the oral notification at the council meeting, and accordingly that the council's purported later incorporation of additional conditions was null and void.

11. With respect to Mr Wilson, who appeared in that matter, the more relevant line of authority is that which includes Everall & Anor v Ku-ring-gai Municipal Council & Ors , a 1990 decision of Hemmings J (as he then was) 72 LGRA 369 in which Mr Wilson also appeared. Everall and other cases, such as Mosman Municipal Council v Bosnich 17 LGRA 74, Somerville v Dalby & Ors 69 LGRA 422 and Cowdroy AJ's decision in Baulkham Hills Shire Council v Dixon Sand (Penrith) Pty Ltd & Ors (No.40130 of 1998) on 13 November 1998 deal with the decision making processes and function of councils. What is clear from those decisions, to which I needed to have regard in an interlocutory matter on 6 January this year, Keppel Road Investments v Kuring-gai Council , is that rescission motions which are in proper form do not effectively stay decisions which they seek to overturn, but such motions must be dealt with in order for the proper decision making processes of the council to be complete. While such motions are before council its statutory decision making processes are still running and the Court should not lightly interfere with those processes.

12. The thrust of those authorities would appear to me to indicate that, if on Monday 8 March 1999 the rescission motion were carried, the decision to release the linen plan would have no effect. If the rescission motion were lost, the decision to release the linen plan would take effect on and from the date on which it was made, not the date on which it was not rescinded.

13. That being the circumstance, I cannot see how the currency of the rescission motion can prejudice the applicant, simply because it will not be dealt with before 6 March, and, accordingly, I am not satisfied that the balance of convenience dictates that the Court should grant the relief sought on an interlocutory basis.

14. In the notice of motion, however, there is a request that the hearing of the proceedings be expedited. It would seem to me that expedition may or may not be an appropriate course, and it would be premature for the Court to make such an order today, given particularly that Mrs Finn, who appears for the council, has not yet had the opportunity to be properly instructed.

15. In those circumstances it would seem to me that probably the matter should be listed for an early call-over some time in the middle of next week perhaps (after the council has had its meeting and has presumably given some consideration to the question of physical commencement as well) to have proper directions made for the further dealing with the matter.

16. The formal orders of the Court will be that the proceedings be adjourned to the Registrar's call-over on Wednesday morning, 10 March 1999, at 9.30 am and that the costs of today's proceedings should be reserved.