Lawrence v Inner West Council

[2019] NSWLEC 46

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lawrence v Inner West Council [2019] NSWLEC 46

Hearing dates:

19 March 2019

Date of orders:

05 April 2019

Decision date:

05 April 2019

Jurisdiction:

Class 2

Before:

Pain J

Decision:

(1) The Applicants’ notice of motion dated 15 February 2019 is upheld to the extent that the amended application in Class 3 proceedings can be relied on.

 

(2) The Applicants may file an amended statement of facts and contentions which accords with this judgment within 21 days.

 

(3) Costs are reserved.

 (4) The proceedings are stood over to the Class 3 list on Friday 3 May 2019 with liberty to the parties to apply through online Court for an earlier list date.

Catchwords:

PRACTICE & PROCEDURE – Class 2 appeal against order issued under Local Government Act 1993 requiring repair of collapsed retaining wall on public land and claim for compensation – application to amend Class 2 appeal – amended application allowed including transfer of proceedings from Class 2 to Class 3 – amendment of statement of facts and contentions not allowed

Legislation Cited:

Civil Liability Act 2002 s 45
Civil Procedure Act 2005 ss 56, 58, 64, 65
Conveyancing Act 1919 s 177
Government Information (Public Access) Act 2009
Land and Environment Court Act 1979 s 19
Land and Environment Court Rules 2007 r 3.7
Local Government Act 1993 ss 124, 180, 181
Roads Act 1993 s 91

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; [2009] HCA 27
Connor v Smith Hire Services (Casino) Pty Ltd [2017] NSWLEC 7
Etna v Arif [1999] 2 VR 353; [1999] VSCA 99
Mailey v Sutherland Shire Council (2017) 226 LGERA 188; [2017] NSWCA 343

Category:

Procedural and other rulings

Parties:

Natalie Lawrence (First Applicant)
Aaron Lawrence (Second Applicant)
Inner West Council (Respondent)

Representation:

COUNSEL:
C Ireland (Applicant)
G Farland (Respondent)

  SOLICITORS:
Piper Alderman (Applicant)
Lindsay Taylor (Respondent)

File Number(s):

18/271173

Judgment

1. The Applicants filed an appeal against an order (Order) issued by the Respondent the Inner West Council (the Council) under s 124 of the Local Government Act1993 (LG Act). The Order required the repair of a collapsed retaining wall on land controlled by the Council adjoining the Applicants’ land. The Applicants appealed against the terms of the Order as provided by s 180 of the LG Act in Class 2 proceedings filed on 4 September 2018. Their notice of motion dated 15 February 2019 before the Court seeks to amend the appeal in the Class 2 proceedings. They seek an order permitting a claim for compensation based on s 181 of the LG Act and the transfer of the proceedings from Class 2 to Class 3 of the Land and Environment Court Act 1979 (LEC Act). Consent to rely on amendments to the statement of facts and contentions (SOFAC) is also sought. If the amendments are allowed no appeal relying on s 180 is to be made.