Hooper v Port Stephens Council - [2009] NSWLEC 234

Land and Environment Court

of New South Wales

CITATION: Hooper v Port Stephens Council [2009] NSWLEC 234

PARTIES:
APPLICANT
Stephen Hooper
RESPONDENT
Port Stephens Council

FILE NUMBER(S): 40991 of 2009

CORAM: Pepper J

KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- no serious question to be tried - balance of convenience against granting of injunction

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Port Stephens Local Environmental Plan 2000
Port Stephens Council Development Control Plan 2007

CASES CITED: Tegra (NSW) Pty Limited v Gundagai Shire Council [2007] NSWLEC 806

DATES OF HEARING: 18 December 2009

EX TEMPORE JUDGMENT DATE: 18 December 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr Stephen Hooper (in person)
SOLICITORS
N/A
RESPONDENT
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

18 December 2009

40991 of 2009 Stephen Hooper v Port Stephens Council

EX TEMPORE JUDGMENT

Introduction

: Before me is an ex parte application brought by Mr Stephen James Hooper who requests the following relief from the Court:

1. That Port Stephens Council stay the issue of a construction certificate to development approval granted 15/12/09 for 25 Gloncester Street, Nelson Bay, until the current development application can be reviewed by the Land and Environment Court.

2 In support of the application Mr Hooper relies on an affidavit sworn by him on 16 December 2009. The affidavit attaches various documents including: an advice from Port Stephens Council (“the council”) concerning the development application in respect of a property located at 25 Gloucester Street, Nelson Bay, described as lot 2 DP 758370 (“the Property”); a letter of objection to the application; a supplementary report from the council in respect of the application and Mr Hooper’s response to that report.

3 Also attached were brief extracts of the Port Stephens Local Environmental Plan 2000 (“the LEP”) and an extract from the Port Stephens Council Development Control Plan 2007 (“the DCP”), together with a planning certificate issued by the council to the proponent, Mr Hallett, on 22 August 2008.

4 The development concerns the building of a three-storey house and the demolition of the existing dwelling on the Property. The development application was approved by the council on 15 December 2009.

5 Mr Hooper is partially affected by the development insofar as he will lose some of his ocean view. However, Mr Hooper says that he is bringing the application for injunctive relief primarily on behalf of his neighbour who, Mr Hooper says, will lose most of his ocean view and on behalf of the community in order to preserve the existing character of the residential location and, in particular, the amenity of the street. Finally, Mr Hooper states that he is bringing the application in order to protect the environment generally from the development.

The Application is Ex Parte

6 While the proceedings are ex parte to the extent that only Mr Hooper appears before me today, the council has nevertheless been informed of the application and is aware that it is proceeding today. Its failure to appear may…

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: [2009] NSWLEC 234
Decision Date: 18 December 2009

CaseChat Overview and Summary

In the matter of Hooper v Port Stephens Council, the applicant, Stephen Hooper, sought an injunction and declarations to prevent the Port Stephens Council from issuing a construction certificate for a property at 25 Gloucester Street, Nelson Bay. The council had approved a development application for the erection of a three-storey house on the property. Hooper argued that the development would negatively impact his ocean view, his neighbour's view, and the character of the residential area. The Land and Environment Court of New South Wales was tasked with determining whether to grant the injunctive relief sought by Hooper.

The court considered two main criteria for granting interlocutory injunctive relief: whether there was a serious question to be tried and whether the balance of convenience favoured granting the injunction. The court found that Hooper had not established a serious question to be tried on any of the grounds he raised, including potential breaches of the Local Environment Plan and the Development Control Plan. The court also found that the balance of convenience did not favour granting the injunction, as Hooper would not suffer irreparable injury if the injunction were not granted, and the potential prejudice to the property owner, Mr Hallett, was considerable. Additionally, the court found that the public interest favoured the orderly administration of the council's processes and the ability of those granted development consents to benefit from them.

Given these findings, the court dismissed Hooper's application for injunctive relief. The court found that the criteria for granting interlocutory injunctive relief had not been met and that the balance of convenience did not favour the grant of relief. The court also noted that the failure to offer an undertaking as to damages was not fatal to the application, particularly in public interest or environmental proceedings. However, the court found that the public interest in this case favoured the property owner and the council in the administration of their processes. The court further noted that there was no evidence that the council was the entity issuing the construction certificate, which would render the injunction ineffective if granted.

Orders