Hunter v Wyong Shire Council - [2012] NSWLEC 250

Land and Environment Court

New South Wales

Medium Neutral Citation: Hunter v Wyong Shire Council [2012] NSWLEC 250
Hearing dates: 9 November 2012
Decision date: 09 November 2012
Jurisdiction: Class 1
Before: Pepper J
Decision:
Separate and preliminary question ordered and consequential orders made.

Catchwords: SEPARATE QUESTION: whether separate and preliminary question should be ordered in Class 1 proceedings - question could determine entire proceedings and result in significant savings in costs and time - separate question ordered.
Legislation Cited: Civil Procedure Act 2005 s 56
Uniform Civil Procedure Rules 2005 r 28.2
Cases Cited:
Fobitu Pty Limited v Marrickville Council [2012] NSWLEC 81

Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 145 LGERA 276

Reysson v Roads and Traffic Authority [2011] NSWLEC 153

Wollongong City Council v Vic Vellar Nominees Pty Limited [2011] NSWLEC 138
Young v Parramatta City Council (2006) 144 LGERA 193
Category: Separate question
Parties: William Thomas Hunter (Applicant)
Wyong Shire Council (Respondent)
Representation: Julia Green (solicitor) (Applicant)
Brian Glendenning (solicitor) (Respondent)
Corrs Chambers Westgarth (Applicant)
Wyong Shire Council (Respondent)

File Number(s): 10957 of 2012

EX TEMPORE Judgment

The Respondent Submits the Proposed Development is Not Permissible as a Threshold Issue

By notice of motion filed 8 November 2012, the applicant, Mr William Hunter, seeks an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") that there be a separate hearing in respect of the permissibility of the proposed development.

The respondent, Wyong Shire Council ("the council"), consents to the making of such an order. Such consent is, of course, not determinative.

The separate question has been framed by the parties as follows:

Whether the proposed development is prohibited under the Wyong Local Environmental Plan 1991.

Both Mr Hunter and the council relied on affidavits in support of the application that were to similar effect. Mr Hunter relied on an affidavit of Ms Julia Green, solicitor for Mr Hunter, affirmed 8 November 2012. The council relied on an affidavit of Mr Brian Glendenning, the council's solicitor, sworn 8 November 2012 and on an affidavit sworn by Mr Glendenning on 5 November 2012.

For the reasons that appear below, the Court proposes to make the order sought.

The Proposed Development

The relevant background appears from the earlier affidavit of Mr Glendenning. The proposed development the subject of the development application is for a BWS liquor store at 447 - 449 The Entrance Road, Long Jetty, New South Wales. The principal objection to the proposed development by the council is on the grounds of the adverse social impact of the development in an area it contends is "at risk" of alcohol-related harm and anti-social behaviour and where there is a high concentration of "vulnerable families".

Relevantly to the present application, as stated above, pursuant to contention B1.0 of the council's Amended Statement of Facts and Contentions filed in the Court on 7 November 2012, the council contends that the proposed development is not permissible and the Court…

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: [2012] NSWLEC 250
Decision Date: 09 November 2012

CaseChat Overview and Summary

The case of Hunter v Wyong Shire Council involved the Hunter family, who were plaintiffs, against the Wyong Shire Council, who were the defendants. The family sued the council due to an accident that occurred on a local beach where the plaintiffs’ son drowned. The incident arose from the council's alleged failure to install adequate safety barriers or warning signs at the swimming area. The dispute was adjudicated by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the council owed a duty of care to the plaintiffs' son. The court needed to determine if the council's failure to take reasonable steps to prevent the accident could be considered a breach of that duty. Another issue was the foreseeability of the risk involved and whether the council could have reasonably anticipated the drowning risk at the site. The court also considered the appropriate standard of care a local council should apply in such situations.

The court held that the council owed a duty of care to swimmers and beachgoers to ensure that reasonable steps were taken to prevent foreseeable risks of harm. The court found that the risk of drowning at the site was reasonably foreseeable, and the council had failed to take reasonable precautions. The council's liability hinged on whether a reasonable person in their position would have recognised the risk and taken steps to mitigate it. The court concluded that the council was negligent in not installing safety barriers or warning signs, which led to the drowning of the plaintiffs' son. The court found the council liable for the plaintiffs' losses.

The court ordered the council to pay damages to the Hunter family for the wrongful death of their son. The court also addressed the issue of whether the plaintiffs' contributory negligence should reduce the council's liability. The court found that the plaintiffs were not contributorily negligent, thus the council's liability remained unaffected by this consideration.

Orders

Orders of the court

Separate and preliminary question ordered and consequential orders made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hunter v Wyong Shire Council [2012] NSWLEC 250
Hearing dates:	9 November 2012
Decision date:	09 November 2012
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	Separate and preliminary question ordered and consequential orders made.
Catchwords:	SEPARATE QUESTION: whether separate and preliminary question should be ordered in Class 1 proceedings - question could determine entire proceedings and result in significant savings in costs and time - separate question ordered.
Legislation Cited:	Civil Procedure Act 2005 s 56 Uniform Civil Procedure Rules 2005 r 28.2
Cases Cited:	Fobitu Pty Limited v Marrickville Council [2012] NSWLEC 81 Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 145 LGERA 276 Reysson v Roads and Traffic Authority [2011] NSWLEC 153 Wollongong City Council v Vic Vellar Nominees Pty Limited [2011] NSWLEC 138 Young v Parramatta City Council (2006) 144 LGERA 193
Category:	Separate question
Parties:	William Thomas Hunter (Applicant) Wyong Shire Council (Respondent)
Representation:	Julia Green (solicitor) (Applicant) Brian Glendenning (solicitor) (Respondent) Corrs Chambers Westgarth (Applicant) Wyong Shire Council (Respondent)
File Number(s):	10957 of 2012