Hooper v Port Stephens Council - [2010] NSWLEC 41

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 Hallett

FILE 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 2007

CASES CITED: Charlton v Moore (No.2) [2009] NSWLEC 47
Hooper v Port Stephens Council [2009] NSWLEC 234

DATES OF HEARING: 12 March 2010, 19 March 2010

EX TEMPORE JUDGMENT DATE: 19 March 2010

LEGAL REPRESENTATIVES:
APPLICANT
In person
FIRST RESPONDENT
Mr M Fraser, Barrister
SOLICITORS
Harris Wheeler
SECOND RESPONDENT
Mr P Larkin and Mr P Maddigan, Barristers
SOLICITORS
Halletts Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

19 March 2010

No.40010 of 2010 HOOPER v PORT STEPHENS COUNCIL & HALLETT
EXTEMPORE JUDGMENT

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

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 41
Decision Date: 19 March 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Stephen James Hooper filed a class 4 challenge against the Port Stephens Council and Trevlyn Peter Hallett regarding the approval of a development consent for a three-storey dwelling at 25 Gloucester Street, Nelson Bay. The applicant, Hooper, opposes the development due to its impact on his property, his neighbour's property, and the preservation of the area's character and environment. The first respondent, Port Stephens Council, had granted consent for the development on 15 December 2009, and the second respondent, Hallett, is the developer.

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