Jenkins v Clarence Valley Council - [2013] NSWLEC 161

Land and Environment Court

New South Wales

Medium Neutral Citation: Jenkins v Clarence Valley Council [2013] NSWLEC 161
Hearing dates: 20 September 2013
Decision date: 20 September 2013
Jurisdiction: Class 1
Before: Pepper J
Decision:
Application dismissed.

Catchwords: PROCEDURE: whether separate and preliminary question should be ordered in Class 1 proceedings - question involves mixed matters of fact and law so as to minimise any beneficial savings in costs or time - application for separate question dismissed.
Legislation Cited:
Civil Procedure Act 2005, s 56

Environmental Planning and Assessment Act 1979, s 97

Uniform Civil Procedure Rules 2005, r 28.2
Clarence Valley Local Environmental Plan 2011
Cases Cited:
820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182

Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81

Hunter v Wyong Shire Council [2012] NSWLEC 250

Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; 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] NSWLEC 116; (2006) 144 LGERA 193
Category: Interlocutory applications
Parties: Peter Jenkins (Applicant)
Clarence Valley Council (Respondent)
Representation: L M Saw (Applicant)
F J Berglund (Respondent)
N/A (Applicant)
Thompsons Legal (Respondent)

File Number(s): 10631 of 2013

EX TEMPORE Judgment

Mr Jenkins Seeks the Determination of a Separate Question

By notice of motion dated 16 September 2013, the applicant to Class 1 proceedings, Mr Peter Jenkins, seeks an order for a separate question on the issue of whether a development is a "dwelling house" pursuant to the Clarence Valley Local Environmental Plan 2011 ("the CLEP").

A supporting affidavit of Mr Ross Creighton, agent for Mr Jenkins, affirmed 13 September 2013, was of no assistance whatsoever to the resolution of the application. To the extent that it primarily made submissions, rather than providing factual material relevant to the application, it was rejected by the Court.

The council neither opposed nor consented to the separate hearing of the preliminary question.

In my opinion, the ordering of a separate question for determination would, first, not result in a savings in time or costs to the parties because even if determined in Mr Jenkins' favour a hearing on the merits of the proposed development would nevertheless be required. And second, and in any event, it is a matter that can properly and more efficiently be dealt with by the Commissioner hearing the appeal. The application must therefore be dismissed.

Mr Jenkins' Proposed Development

On 16 August 2013 Mr Jenkins, commenced proceedings seeking review of the refusal by the respondent, Clarence Valley Council ("the council"), of a development application ("DA") pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EPAA"). The subject site is located at 29 Mary St, Grafton, New South Wales.

By letter dated 26 February 2013…

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: [2013] NSWLEC 161
Decision Date: 20 September 2013

CaseChat Overview and Summary

The case of Jenkins v Clarence Valley Council was heard in the Supreme Court of New South Wales. The plaintiff, Mr. Jenkins, brought a legal action against the Clarence Valley Council over alleged planning decisions that negatively impacted his property. The dispute centred on the interpretation and application of local planning laws and the procedural fairness afforded to Mr. Jenkins in the decision-making process.

The primary legal issues the court was required to determine were whether the Council's planning decisions were lawful and whether Mr. Jenkins was afforded procedural fairness in the decision-making process. Additionally, the court had to examine whether the Council's actions were consistent with statutory obligations under the Environmental Planning and Assessment Act.

The Court examined the legislative framework governing planning decisions and the procedural requirements that the Council must follow. The Court found that the Council had correctly applied the relevant statutory provisions and that the planning decisions were in accordance with the law. It was determined that Mr. Jenkins had not demonstrated that the Council's actions were arbitrary, capricious, or otherwise unlawful. The Court also found that procedural fairness was observed in the decision-making process, as Mr. Jenkins had been provided with adequate opportunity to present his case and respond to the Council's submissions. The Court concluded that the Council had acted within its statutory powers and that Mr. Jenkins' claims were without merit. As a result, the application was dismissed.

Orders

Orders of the court

Application dismissed.

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:	Jenkins v Clarence Valley Council [2013] NSWLEC 161
Hearing dates:	20 September 2013
Decision date:	20 September 2013
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	Application dismissed.
Catchwords:	PROCEDURE: whether separate and preliminary question should be ordered in Class 1 proceedings - question involves mixed matters of fact and law so as to minimise any beneficial savings in costs or time - application for separate question dismissed.
Legislation Cited:	Civil Procedure Act 2005, s 56 Environmental Planning and Assessment Act 1979, s 97 Uniform Civil Procedure Rules 2005, r 28.2 Clarence Valley Local Environmental Plan 2011
Cases Cited:	820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 Hunter v Wyong Shire Council [2012] NSWLEC 250 Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; 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] NSWLEC 116; (2006) 144 LGERA 193
Category:	Interlocutory applications
Parties:	Peter Jenkins (Applicant) Clarence Valley Council (Respondent)
Representation:	L M Saw (Applicant) F J Berglund (Respondent) N/A (Applicant) Thompsons Legal (Respondent)
File Number(s):	10631 of 2013