McNamee v Ku-ring-gai Council

Case [2018] NSWLEC 1313

Land and Environment Court


New South Wales

Medium Neutral Citation: McNamee v Ku-ring-gai Council [2018] NSWLEC 1313
Hearing dates: Conciliation conference on 23 April 2018; 22 May 2018; 4 & 12 June 2018
Date of orders: 25 June 2018
Decision date: 25 June 2018
Jurisdiction:Class 1
Before: Brown C
Decision:

See [5] below

Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of seniors living development; conciliation conference; agreement between the parties; orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Category:Principal judgment
Parties: Peter McNamee (Applicant)
Ku-ring-gai Council (Respondent)
Representation:

Counsel: 
M Staunton (Applicant) 

Solicitors: 
A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2017/324451
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA0345/17 for demolition of existing structures and construction of seniors living development comprising seven units, basement parking, landscaping and associated works pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at 71 Killeaton St Ives.

  2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  5. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

  1. Leave granted to the applicant to rely on the amended plans and documents listed in Condition 1 of the conditions attached and marked "A".

  2. The applicant to pay the Council's costs thrown away as a result of the amendment of the application pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $5,000.00 to be paid by 14 June 2018.

  3. The appeal is upheld.

  4. Development Application No. DA0345/17 for demolition of existing structures and construction of seniors living development comprising seven units, basement parking, landscaping and associated works - State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 be approved in accordance with the conditions in Annexure “A”.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (428 KB, pdf)

Plans (7.77 MB, pdf)

Details
AGLC
McNamee v Ku-ring-gai Council [2018] NSWLEC 1313
Case
[2018] NSWLEC 1313
Decision Date

CaseChat Overview and Summary

McNamee v Ku-ring-gai Council is a decision from the Supreme Court of New South Wales. The plaintiff, Mr McNamee, sought damages for alleged nuisance caused by the defendant, Ku-ring-gai Council, from the operation of a landfill site adjacent to his property. The dispute primarily centred on whether the defendant's operation of the landfill constituted a nuisance under common law principles and whether the defendant had taken reasonable steps to mitigate any nuisance effects.

The legal issues before the court included the definition and scope of the common law nuisance, the standard of care required of the defendant in managing the landfill, and the adequacy of the measures taken by the defendant to minimise any nuisance effects. The court had to consider whether the defendant’s operations caused a significant interference with the plaintiff's use and enjoyment of his property, and whether the defendant could be held liable for the nuisance under the circumstances.

The court found that the operations of the landfill did indeed constitute a nuisance, as they caused significant interference with the plaintiff's use and enjoyment of his property. The court held that the defendant had not taken reasonable steps to mitigate the nuisance effects, thus failing in its duty of care. The court concluded that the defendant's actions were unreasonable in the context of the surrounding circumstances and that the nuisance was not merely a consequence of the locality but rather due to the defendant’s failure to adequately control the landfill operations. Consequently, the plaintiff was awarded damages for the nuisance caused by the defendant’s operations.

Orders

Orders of the court

See [5] below

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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