Liverpool City Council v Prabha Ranjee Kumaragamage (No.2)

[2004] NSWLEC 655

Land and Environment Court

of New South Wales

CITATION:	Liverpool City Council v Prabha Ranjee Kumaragamage (No.2) [2004] NSWLEC 655
PARTIES:	APPLICANT Liverpool City Council RESPONDENT Prabha Ranjee Kumaragamage
FILE NUMBER(S):	40052 of 2003
CORAM:	Talbot J
KEY ISSUES:	Practice and Procedure :- Slip rule - application of.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 124 Land and Environment Court Rules 1996 Part 10 rule 7 Local Government Act 1993 s 124
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	11/25/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr I J Hemmings (Barrister) SOLICITORS Marsdens Law Group RESPONDENT Mr D Kumaragamage (Agent)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

25 November 2004

40052 of 2003 Liverpool City Council v Prabha Ranjee Kumaragamage

JUDGMENT

1 Talbot J: The Cross Claimant alleges in the first Cross Claim that the Council Cross Respondent breached a duty negligently, maliciously and/or unfaithfully inter alia:-

5. In any case, present legal proceedings against the Cross Claimant were unnecessary since before any legal action, the Cross Respondent had a statutory duty to issue and serve Notice(s) under s 124 of the Local Government Act if any breach by the Cross Claimant was evident.

2 At paragraph 11, 18 and 22 of the judgment delivered 1 November 2004 I refer to s 124 of the Environmental Planning and Assessment Act 1979. The Further and Better Particulars provided to the Cross Respondent by the Cross Claimant identify the factual and legal basis for the alleged statutory duty to issue a notice as the “Local Government Act s 124 - the circumstances for issue of Order 30.”

3 There is no obligation to issue an order pursuant to s 124 of the Local Government Act 1993 before commencing proceedings seeking orders to remedy a breach of that Act or the Environmental Planning and Assessment Act. The reference to s 124 of the Environmental Planning and Assessment Act is an error. Coincidentally there is no duty to give a notice under s 121B of the Environmental Planning and Assessment Act or any other notice before commencing proceedings pursuant to s 124 of the Environmental Planning and Assessment Act .

4 The order made on 1 November 2004 is correct and is a proper reflection of the reasons for judgment as follows:-

1. Any claim that the cross respondent Council had a statutory duty to issue and serve Notice(s) under s 124 of the Local Government Act if any breach by the cross claimant was evident, is dismissed.

5 On the Court’s own motion, pursuant to Part 10, Rule 7 of the Land and Environment Court Rules the reference to “EP&A Act” in paragraphs 11, 18 and 22 of the judgment published 1 November 2004 is deleted and “Local Government Act” inserted in lieu thereof.