Kennedy v Stockland Developments Pty Ltd (No 6) - [2012] NSWLEC 34

Land and Environment Court

New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34
Hearing dates: 5 March 2012
Decision date: 05 March 2012
Jurisdiction: Class 4
Before: Pepper J
Decision:
Leave to reopen is refused

Catchwords: PRACTICE AND PROCEDURE: application for leave to reopen to admits further evidence - whether interests of justice better served by allowing or rejecting the application - evidence not relevant - prejudice to party opposing application - no explanation for failure to obtain evidence earlier or for delay in making application - application refused
Legislation Cited: Environmental Planning and Assessment Act 1979, s 76A, Pt 3A
National Parks and Wildlife Act 1974 s 86
Cases Cited: Kennedy v Stockland Developments Pty Ltd (No2) [2012] NSWLEC 3
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35
Category: Interlocutory applications
Parties: Mr Roy "Dootch" Kennedy (Applicant)
Stockland Developments Pty Ltd (Respondent)
Representation: Mr A Oshlack (Applicant)
Mr J E Robson SC with Mr H El-Hage (Respondent)
Herbert Geer (Respondent)

File Number(s): 40977 of 2011

Ex Tempore Judgment

The Applicant Applies to Reopen His Case at the Commencement of Final Submissions

This is an application by the applicant to reopen his case in order to admit into evidence a deed made between BHP Refactories Pty Ltd ("BHP") and the Council of the City of Wollongong ("the council").

The application was made after the evidence of both parties had closed but before final addresses had commenced. The application comes on day four of what was originally listed to be a three day hearing and after a two week adjournment in the proceedings.

Factual Background to the Application

Mr Kennedy is an Aboriginal person of the Yuni Nation with traditional links to the land and is the founder of the Sandon Point Aboriginal Tent Embassy.

Stockland is a corporation that has the benefit of major project approval pursuant to the now repealed Pt 3A of the Environmental Planning and Assessment Act 1979 ("the EPAA") for the construction of a 181 lot subdivision with associated works and a boundary readjustment. These works include the construction of a road running east to west along the southern boundary of the subdivision development site.

Mr Kennedy claims that Stockland has breached the approval by undertaking works not authorised by the approval for the purposes of clearing and constructing a shared road way on land described as "Wilkies Walk". As a consequence, he further alleges that Stockland is carrying out construction of a road without consent in breach of s 76A of the EPAA and that Stockland has breached s 86 of the National Parks and Wildlife Act 1974 by damaging or destroying objects of Indigenous cultural heritage and a potential archaeological deposit.

Additional factual background to the application is set out in Kennedy v Stockland Developments Pty Ltd (No 4) [2012] NSWLEC 3 at [7]-[20] and is not repeated here.

Applicable Legal Principles

The applicable legal principles in respect…

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 34
Decision Date: 05 March 2012

CaseChat Overview and Summary

The dispute between the plaintiffs, the Kennedys, and the defendant, Stockland Developments, was heard in the Supreme Court of Queensland. The plaintiffs sought to reopen their case against the defendant, a property developer, in relation to the construction of a building that allegedly caused damage to their neighbouring property. The plaintiffs claimed that the defendant had failed to take reasonable care to prevent damage from the construction activities, which resulted in significant damage to their property. The defendant, in turn, argued that the plaintiffs' case was statute-barred and that the plaintiffs had not provided sufficient evidence to support their claims.

The central legal issues that the court had to decide were whether the plaintiffs' case was statute-barred and whether the plaintiffs had provided sufficient evidence to support their claims. The court had to determine whether the plaintiffs had exercised due diligence in pursuing their claims and whether they had provided sufficient evidence to establish the defendant's liability. The court also had to consider whether the defendant had breached any statutory obligations in relation to the construction activities.

The court found that the plaintiffs' case was statute-barred and that they had not exercised due diligence in pursuing their claims. The court held that the plaintiffs had failed to provide sufficient evidence to establish the defendant's liability and that the plaintiffs' claims were not supported by the evidence. The court found that the defendant had taken reasonable care to prevent damage from the construction activities and that the damage to the plaintiffs' property was not caused by the defendant's negligence. The court held that the plaintiffs' case was not made out and that the defendant was not liable for the damage to the plaintiffs' property. The court refused the plaintiffs' application to reopen the case.

Orders

Orders of the court

Leave to reopen is refused

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:	Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34
Hearing dates:	5 March 2012
Decision date:	05 March 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Leave to reopen is refused
Catchwords:	PRACTICE AND PROCEDURE: application for leave to reopen to admits further evidence - whether interests of justice better served by allowing or rejecting the application - evidence not relevant - prejudice to party opposing application - no explanation for failure to obtain evidence earlier or for delay in making application - application refused
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 76A, Pt 3A National Parks and Wildlife Act 1974 s 86
Cases Cited:	Kennedy v Stockland Developments Pty Ltd (No2) [2012] NSWLEC 3 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35
Category:	Interlocutory applications
Parties:	Mr Roy "Dootch" Kennedy (Applicant) Stockland Developments Pty Ltd (Respondent)
Representation:	Mr A Oshlack (Applicant) Mr J E Robson SC with Mr H El-Hage (Respondent) Herbert Geer (Respondent)
File Number(s):	40977 of 2011