Land and Environment Court
of New South Wales
CITATION: Hooper v Port Stephens Council & Hallett [2010] NSWLEC 41 PARTIES: APPLICANT
Stephen James Hooper
FIRST RESPONDENT
Port Stephens Council
SECOND RESPONDENT
Trevlyn Peter HallettFILE NUMBER(S): 40010 of 2010 CORAM: Sheahan J KEY ISSUES: PRACTICE AND PROCEDURE :- Notice of Motion to strike out points of claim, application for order under Rule 4.3(b) to provide Statement of Reasons for Council decision, vacation of hearing dates, consequential directions, allegation of improper conduct by Council or its officers must be specifically pleaded LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 2007CASES CITED: Charlton v Moore (No.2) [2009] NSWLEC 47
Hooper v Port Stephens Council [2009] NSWLEC 234DATES OF HEARING: 12 March 2010, 19 March 2010 EX TEMPORE JUDGMENT DATE: 19 March 2010 LEGAL REPRESENTATIVES: APPLICANT
In personFIRST RESPONDENT
SECOND RESPONDENT
Mr M Fraser, Barrister
SOLICITORS
Harris Wheeler
Mr P Larkin and Mr P Maddigan, Barristers
SOLICITORS
Halletts Solicitors
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESSheahan J
19 March 2010
EXTEMPORE JUDGMENTNo.40010 of 2010 HOOPER v PORT STEPHENS COUNCIL & HALLETT
Introduction
1 His Honour: This court has to deal today with a number of issues which have arisen in these class 4 proceedings which are currently fixed for hearing on 27-28 May 2010.
2 The applicant Mr Hooper is self-represented, highly experienced in building and development matters, and profoundly hard of hearing. He has a range of complaints about Council’s operations, and its alleged inconsistency.
3 He lives at 106 Government Road, Nelson Bay, and objects to the proposed development by the second respondent Mr Hallett involving a three-storey dwelling at 25 Gloucester Street, Nelson Bay. His objection having not prevailed, consent was granted by Council on 15 December 2009 (16/2009/667/1).
Mr Hooper’s proceedings
4 Mr Hooper was so advised on 18 December 2009, and immediately commenced proceedings for an injunction to prevent the issue of a construction certificate. Those proceedings were heard ex parte by Pepper J, and the injunction was not granted – matter No. 40991 of 2009, see Her Honour’s judgment 18 December 2009 [2009] NSWLEC 234. Mr Hooper says he commenced those proceedings partly to put Council and Mr Hallett clearly on notice that he was going to challenge the consent.
5 Mr Hooper then commenced this class 4 challenge to the consent by summons issued on 12 January 2010, seeking the following relief:
- “ 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 NSW. On 15 December 2009.
- GROUNDS TO SET ASIDE: The Development applicant [Hallett] and/or the architects [briefed by Hallett] along with PSC staff and councillors failed their Duty of Care [owed to ratepayers of PSC areas] in failing to strickly (sic) apply the ‘ MANDATORY LANGUAGE ’ contained in the three current PSC ‘PLANNING INSTRUMENTS ’. PSC’s 149 certificate; LEP/DCP .”
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- Case
- [2010] NSWLEC 41
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this case are whether the applicant's Points of Claim disclose a reasonable cause of action, and whether the Council should be ordered to provide a written statement of reasons for its decision under Rule 4.3(b) of the Land and Environment Court Rules 2007. Additionally, the court must consider the appropriateness of striking out the Points of Claim and amending the summons, as well as determining the appropriate directions for the case moving forward.
In its judgment, the court found that the applicant's Points of Claim were inadequate and needed to be struck out. However, the summons should not be dismissed, but rather amended to include specific details of any allegations of improper conduct by the Council or its officers. The court also ordered the Council to prepare a written statement of reasons for its decision and vacated the hearing dates to allow for proper pleading and preparation of the case. The court provided specific directions for the filing of amended summons, Points of Claim, Points of Defence, affidavits, and materials, as well as for the appointment of new hearing dates.
In summary, the court held that the applicant's Points of Claim needed to be amended and particularised to disclose a reasonable cause of action, and that the Council should provide a written statement of reasons for its decision. The court also struck out the applicant's initial Points of Claim, vacated the hearing dates, and provided specific directions for the case moving forward.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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