Kudrynski v Orange City Council

The Land and Environment Court of New South Wales, constituted by Meagher and Kirk JJA and Griffiths AJA, heard an appeal by Mr Kudrynski and others against a decision of the Land and Environment Court. The dispute concerned the compulsory acquisition of vacant land by Orange City Council for a stormwater harvesting project. The appellants contended that the highest and best use of the land was for rural residential development and sought compensation of $160 million.

The primary legal issue before the Court of Appeal was whether the appeal to it was validly brought under section 57(1) of the *Land and Environment Court Act 1979* (NSW), which requires an appeal to be made on a question of law. This question arose due to alleged deficiencies in the notice of appeal, specifically whether any of the 24 grounds of appeal articulated by the appellants met the statutory threshold of raising a question of law.

The Court of Appeal found that the grounds of appeal did not raise questions of law, but rather sought to re-argue factual findings made by the primary judge. The Court reiterated the well-established principle that an appeal under section 57(1) is limited to questions of law and does not permit a re-hearing of the evidence or a substitution of the appellate court's view for that of the primary judge on factual matters. Consequently, the Court concluded that the appeal was not properly constituted.

The appeal was dismissed, with costs awarded to the respondent.