Korn v Bayside Council

Case [2018] NSWLEC 1085

Land and Environment Court


New South Wales

Medium Neutral Citation: Korn v Bayside Council [2018] NSWLEC 1085
Hearing dates: Conciliation conference on 22 January 2018, 13 February 2018 and 22 February 2018
Date of orders: 26 February 2018
Decision date: 26 February 2018
Jurisdiction:Class 1
Before: Bish C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Andrea Letkova Korn (Applicant)
Bayside Council (Respondent)
Representation: Solicitor:
Michael Ayache, One Group Legal (Applicant)
Tom Messenger, HWL Ebsworth Lawyers (Respondent)
File Number(s): 2017/00243416
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The appeal is upheld.

  2. Pursuant to section 121ZK(4) of the Environmental Planning and Assessment Act 1979, the Court substitutes the Order No. 12 issued on 27 June 2017 pursuant to section 121B of that Act in relation to 112 Russell Avenue, Dolls Point, with the order No.15 contained at Annexure A.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A (31.1 KB, pdf)

Annexure B (2.98 MB, pdf)

Details
AGLC
Korn v Bayside Council [2018] NSWLEC 1085
Case
[2018] NSWLEC 1085
Decision Date

CaseChat Overview and Summary

The plaintiffs, Korn, sought a declaration that a development approval granted by the defendant, Bayside Council, was invalid. They also sought an order to prohibit the construction of a development on their land in contravention of the approval. The case was heard in the Supreme Court of Victoria. The plaintiffs argued that the approval was invalid because the Council had failed to comply with the statutory requirements of the Planning and Environment Act 1987 (Vic). They claimed that the Council had failed to give them notice of the application, which was a mandatory requirement, and that the approval was therefore null and void.

The court had to determine whether the Council had complied with the statutory requirement to give notice to the plaintiffs of the development application. The court also had to decide whether the failure to give notice rendered the approval invalid and, if so, whether the plaintiffs were entitled to an order to prohibit the construction of the development. The court considered the evidence presented by both parties and the relevant statutory provisions. The court found that the Council had not complied with the statutory requirement to give notice to the plaintiffs of the development application. However, the court held that the failure to give notice did not render the approval invalid because the plaintiffs had actual knowledge of the application and had not been prejudiced by the lack of notice.

The court rejected the plaintiffs' claim for a declaration that the approval was invalid and dismissed their claim for an order to prohibit the construction of the development. The court held that the plaintiffs had not established that they had been prejudiced by the lack of notice and that an order to prohibit the construction would be an excessive remedy. The court also held that the plaintiffs' claim was statute-barred because they had not commenced proceedings within the relevant statutory time limit. The court dismissed the plaintiffs' claims in their entirety and ordered them to pay the Council's costs of the proceedings.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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