Hooper v Port Stephens Council - [2010] NSWLEC 107

Land and Environment Court

of New South Wales

CITATION: Hooper v Port Stephens Council and Anor [2010] NSWLEC 107

PARTIES: APPLICANT
Stephen Hooper
FIRST RESPONDENT
Port Stephens Council
SECOND RESPONDENT
Trevlyn Peter Hallett

FILE NUMBER(S): 40010 of 2010

CORAM: Pain J

KEY ISSUES: PRACTICE AND PROCEDURE :- judicial review proceedings - whether amended points of claim raise grounds relevant to judicial review or are impermissible merit grounds

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1993
Port Stephens Development Control Plan 2007
Port Stephens Local Environmental Plan 2000
State Environmental Planning Policy No 1 - Development Standards

CASES CITED: F & D Bonnacorso v City of Canada Bay Council and Others (No 2) [2007] NSWLEC 537; (2008) 158 LGERA 250

DATES OF HEARING: 24 June 2010
25 June 2010

EX TEMPORE JUDGMENT DATE: 25 June 2010

LEGAL REPRESENTATIVES: APPLICANT
In person
FIRST RESPONDENT
Mr M Fraser
SOLICITOR
Harris Wheeler Lawyers
SECOND RESONDENT
Mr P Larkin
SOLICITOR
Halletts Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

25 June 2010

40010 of 2010 Hooper v Port Stephens Council and Anor
EX TEMPORE JUDGMENT

1 Her Honour: The Applicant, Mr Hooper, has filed in these Class 4 proceedings an amended summons and Amended Points of Claim (APOC) which allege various errors or shortcomings in the Council’s determination of a development consent for a house DA 16-2009-667-1 in Port Stephens on the north coast of NSW. Development consent was granted by eleven councillors on 15 December 2009. Mr Hooper is representing himself.

2 The amended summons seeks:

1. SET ASIDE [ABOLISH] the DEVELOPMENT APPROVAL of PORT STEPHENS COUNCIL [ PSC] WHO GRANTED CONSENT TO ERECT A three storey dwelling at 25 Gloucester Street Nelson Bay on 15 December 2009.

…

2. PSC staff during the D/A assessment proves practiced and/or allow improper conduct to prevail having the direct effect to produce flawed documents.

3. Senior PSC Health and building Surveyor’s independence was compromised allowing professional misconduct to prevail resulting in a bias in respect to the D/A proposal.

4. the author of the PSC “REPORT” and “ASSESSMENT’ documents used subjective claims and answers that failed to recognize the force of PSC’s-LEP 2000 and DCP 2007 that prevented the documents being constructed with definitive claims and answers having the direct effect to produce flawed/unreliable documents.

5. PSC COUNCILLORS (11) on 15 December 2009 voted unanimously to accept the recommendations of the “REPORT” that was a flawed and unreliable document.

3 The amended points of claim identifies ten issues as follows:

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.

Keep reading for free

Create a free CaseChat account to read Hooper v Port Stephens Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWLEC 107
Decision Date: 25 June 2010

CaseChat Overview and Summary

In the case of Hooper v Port Stephens Council, the applicant, Mr. Stephen Hooper, sought to challenge the Port Stephens Council's decision to grant development consent for a three-story dwelling at 25 Gloucester Street, Nelson Bay, NSW. The Council had approved the development consent on 15 December 2009, and Mr. Hooper, representing himself, filed an amended summons and amended points of claim, seeking to have the approval set aside on various grounds. The second respondent, Mr. Trevlyn Peter Hallett, who was associated with the development, also participated in the proceedings. The primary legal issues before the court were whether the amended points of claim raised grounds relevant to judicial review or if they were impermissible merit grounds.

The court held that the amended points of claim raised issues that were not appropriately framed as judicial review grounds. Judicial review proceedings focus on whether there was a failure to take into account mandatory relevant considerations as required by the statutory scheme under the Environmental Planning and Assessment Act 1979. The court found that the issues raised by Mr. Hooper did not meet these criteria. Issues such as the description of the proposed development, the statement of environmental effects, and the customer service DA checklist did not articulate any issue that could be raised in judicial review proceedings. Similarly, the details of meetings between Mr. Hooper and Council officers were deemed irrelevant to judicial review. The court also found that there was no evidence to support the serious allegations of improper conduct or fraudulent misrepresentation. The court concluded that the amended points of claim did not establish that there was a failure to take into account relevant considerations, and there was no basis for finding that a council failed to take into account a relevant matter.

The court allowed certain issues to remain for argument, specifically the absence of an application under the State Environmental Planning Policy No 1 - Development Standards (SEPP 1), and the potential misleading and material errors in the Council report before the Council on 15 December 2009. The court did not dismiss the whole of the summons and amended points of claim, allowing Mr. Hooper to focus his evidence and submissions on the core issue of the building's height and the absence of a SEPP 1 objection in light of the Council's Local Environmental Plan.

Orders