Lakeman v Ku-ring-gai Council - [2013] NSWLEC 14

Land and Environment Court

New South Wales

Medium Neutral Citation: Lakeman v Ku-ring-gai Council [2013] NSWLEC 14
Hearing dates: 12 February 2013
Decision date: 14 February 2013
Jurisdiction: Class 1
Before: Pain J
Decision:
1. The Application Class 1 filed on 20 December 2012 is struck out for want of jurisdiction.
2. Costs reserved.

Catchwords: Procedure - Class 1 appeal statute barred - no determination of s 82A review if request rejected - no extension of time to appeal under s 97(1) unless change of original determination in s 82A review
Legislation Cited: Environmental Planning and Assessment Act 1979 s 80, s 82A, s 82C, s 82D, s 97
Planning Appeals Legislation Amendment Act 2010 Sch 1
Environmental Planning and Assessment Regulation 2000 cl 113A, cl 123G
Cases Cited: Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713
Longhill Projects Pty Ltd v Parramatta City Council [2009] NSWLEC 1414
Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347
Category: Principal judgment
Parties: Allen Raymond Lakeman (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Mr D Wilson (Applicant)
Ms A Hemmings (Respondent)
Robilliard Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 11262 of 2012

Judgment

The Council moves on its Notice of Motion filed on 18 January 2013 seeking to strike out the Applicant's class 1 appeal for want of jurisdiction because the appeal was lodged out of time. The Council also seeks its costs of the proceedings including the costs of the motion or of the motion only. The question to be determined is whether or not the Applicant has commenced an appeal within the time allowed by s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

Environmental Planning and Assessment Act 1979

The relevant sections of the EPA Act provide:

80 Determination

(1) General

A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

...

82A Review of determination

(1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant's application, other than:

(a) a determination to issue or refuse to issue a complying development certificate, or

(b) a determination in respect of designated development, or

(c) a determination in respect of integrated development, or

(d) a determination made by the council under Division 4 in respect of an application by the Crown.

(subsections (a) - (d) are not applicable)

(2) A council must, on a request made in accordance with this section, conduct a review.

(2A) A determination cannot be reviewed:

(a) after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or

(b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination.

(3) (Repealed)

(3A) In requesting a review, the applicant may…

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.

Keep reading for free

Create a free CaseChat account to read Lakeman v Ku-ring-gai Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWLEC 14
Decision Date: 14 February 2013

CaseChat Overview and Summary

In Lakeman v Ku-ring-gai Council, the matter before the Land and Environment Court of New South Wales involved a dispute between the applicant, Lakeman, and the respondent, Ku-ring-gai Council. Lakeman sought to challenge a decision made by the Council under the Environmental Planning and Assessment Act 1979 (NSW). The Council had determined that certain land was subject to a heritage conservation order, and Lakeman argued that the Council's decision was flawed and should be quashed.

The legal issues central to this case revolved around the scope of the Court's jurisdiction to review the decision of the Council and the interpretation of the relevant statutory provisions. Specifically, the Court had to determine whether it had the authority to review the Council's decision under the relevant provisions of the Environmental Planning and Assessment Act 1979 (NSW). Additionally, the Court needed to consider whether the Council's decision was legally sound and whether there were any procedural errors in reaching that decision.

In delivering its judgment, the Court found that it lacked jurisdiction to review the Council's decision. The Court concluded that the statutory framework did not provide for judicial review of the Council's determination regarding heritage conservation orders. As such, the Court was unable to entertain Lakeman's application for review. The Court also noted that the applicant had not demonstrated that any procedural errors had occurred that would warrant the Court's intervention. Consequently, the application was struck out for want of jurisdiction, and costs were reserved.

Orders

Orders of the court

1. The Application Class 1 filed on 20 December 2012 is struck out for want of jurisdiction.

2. Costs reserved.

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:	Lakeman v Ku-ring-gai Council [2013] NSWLEC 14
Hearing dates:	12 February 2013
Decision date:	14 February 2013
Jurisdiction:	Class 1
Before:	Pain J
Decision:	1. The Application Class 1 filed on 20 December 2012 is struck out for want of jurisdiction. 2. Costs reserved.
Catchwords:	Procedure - Class 1 appeal statute barred - no determination of s 82A review if request rejected - no extension of time to appeal under s 97(1) unless change of original determination in s 82A review
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 80, s 82A, s 82C, s 82D, s 97 Planning Appeals Legislation Amendment Act 2010 Sch 1 Environmental Planning and Assessment Regulation 2000 cl 113A, cl 123G
Cases Cited:	Hainbury Pty Ltd v Campbelltown City Council [2007] NSWLEC 713 Longhill Projects Pty Ltd v Parramatta City Council [2009] NSWLEC 1414 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347
Category:	Principal judgment
Parties:	Allen Raymond Lakeman (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Mr D Wilson (Applicant) Ms A Hemmings (Respondent) Robilliard Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	11262 of 2012