Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: May v Northern Beaches Council [2023] NSWCA 205 Hearing dates: 28 August 2023 Date of orders: 05 September 2023 Decision date: 05 September 2023 Before: Meagher JA; Payne JA Decision: (1) Extension of time to seek leave to appeal the primary judgment refused.
(2) Summons seeking leave to appeal dismissed.
(3) Applicant to pay the second respondent’s costs of the application for leave to appeal.
(4) Notice of motion filed by the applicant on 27 July 2023 dismissed.
(5) Applicant to pay the second respondent’s costs of the notice of motion.
Catchwords: APPEALS — Leave to appeal — interlocutory decision in Land and Environment Court to summarily dismiss judicial review proceedings — applicant advanced no discrete basis for grant of leave — proposed grounds of appeal relied on in support of leave — leave refused
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 4.55 (as at September 2021), s 96 (repealed 28 February 2018)
Environmental Planning and Assessment Regulation 2000 (NSW) cl 55, cl 98E
Land and Environment Court Act 1979 (NSW) s 20(1)(c)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.7, 59.10
Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
IntrapacSkennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83
Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213
May v Northern Beaches Council [2023] NSWLEC 72
McMillan v Taylor [2023] NSWCA 183
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142
Texts Cited: Pittwater Local Environmental Plan 2014
Category: Principal judgment Parties: Stephen May (applicant)
Northern Beaches Council (first respondent)
Paul Wilhelm (second respondent)Representation: Counsel:
In person (applicant)
Submitting appearance (first respondent)
M Harker (second respondent)Solicitors:
Wilshire Webb Staunton Beattie Lawyers (first respondent)
Clyde & Co (second respondent)
File Number(s): 2023/67640 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- New South Wales Land and Environment Court
- Jurisdiction:
- Class 4
- Citation:
- Date of Decision:
- 14 February 2023
- Before:
- Robson J
- File Number(s):
- 2021/00286184
JUDGMENT
-
THE COURT: Mr Stephen May seeks leave to appeal against an interlocutory decision of Robson J in the Land and Environment Court to summarily dismiss judicial review proceedings commenced by Mr May in that Court’s Class 4 jurisdiction: May v Northern Beaches Council (No 2) [2023] NSWLEC 7.
Background
-
The applicant lives in Church Point, next door to the second respondent, Mr Wilhelm. In 2017, Mr Wilhelm sought and obtained development consent from Northern Beaches Council (the first respondent) to build a family home. The first respondent later approved two modifications to that consent. Those modifications were granted in 2018 and 2021.…
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- Case
- [2023] NSWCA 205
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether to grant leave to appeal the Land and Environment Court's decision to summarily dismiss the judicial review proceedings. This involved considering whether the applicant had demonstrated sufficient grounds to warrant appellate intervention at this interlocutory stage.
The Court of Appeal refused the application for leave to appeal. Their Honours found that the applicant had not established any compelling reason for leave to be granted, and the proposed grounds of appeal did not demonstrate a strong likelihood of success or raise issues of sufficient importance to justify appellate review of the interlocutory decision. Consequently, the Court refused an extension of time to seek leave to appeal and dismissed the summons seeking leave to appeal. The applicant was ordered to pay the second respondent's costs of the application for leave to appeal and the notice of motion filed on 27 July 2023.
Orders
Orders of the court
(1) Extension of time to seek leave to appeal the primary judgment refused.
(2) Summons seeking leave to appeal dismissed.
(3) Applicant to pay the second respondent’s costs of the application for leave to appeal.
(4) Notice of motion filed by the applicant on 27 July 2023 dismissed.
(5) Applicant to pay the second respondent’s costs of the notice of motion.
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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