Mid-Coast Council v Gazecki - [2024] NSWLEC 88

Land and Environment Court

New South Wales

Medium Neutral Citation: Mid-Coast Council v Gazecki [2024] NSWLEC 88
Hearing dates: 13, 16, 19 August 2024
Date of orders: 20 August 2024
Decision date: 20 August 2024
Jurisdiction: Class 4
Before: Pain J
Decision:
The Court orders that:
(1) The Respondents’ amended notice of motion filed on 16 August 2024 is dismissed.
(2) Costs reserved.

Catchwords:
PROCEDURE – whether court should release respondents from an undertaking and accept new undertaking which is not agreed by applicant local council

Legislation Cited:
Nil

Cases Cited:
Adam P Brown Male Fashions Pty Ltdv PhilipMorris Inc (1981) 148 CLR 170; [1981] HCA 39
Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95; [2006] FCA 1215
Cutler v Wandsworth Stadium Ltd [1945] 1 AII ER 103
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593
Paino v Hofbauer (1988) 13 NSWLR 193
Starcevich v Swart and Associates Pty Ltd [2006] NSWSC 1387

Texts Cited:
Nil

Category: Procedural rulings
Parties: Mid-Coast Council (Applicant)
John Janek Christopher Gazecki (First Respondent)
Natalie Marie Decorte (Second Respondent)
Representation:
Counsel:
A Jucha (Applicant)
J Gazecki (Litigant in person, First Respondent)
N Decorte (Litigant in person, Second Respondent)
Solicitors:
Local Government Legal (Applicant)
N/A (Respondents)

File Number(s): 2024/00061055-002

JUDGMENT

The First Respondent Mr Gazecki and the Second Respondent Ms Decorte (the Respondents) own rural land at Upper Myall Road Warranulla (the Land) on which they have built three dams. The Applicant Mid-Coast Council (the Council) has commenced Class 4 proceedings seeking declarations and an order that the Respondents submit the required landform restoration plan for Dam 1 to the Council in accordance with directions 1 and 2 of the restore works order inter alia. A related Class 1 proceeding commenced by Ms Decorte appeal a development control order issued in relation to dams on the Land by the Council and have a hearing date on 29 and 30 October 2024. As of 12 August 2024 the Respondents are representing themselves.
On 15 April 2024:

The Respondents gave an undertaking (the Undertaking) in the Class 4 proceeding for certain interim works to be done in respect of Dam 1; and

the Court made orders, by consent, in the Class 1 proceeding staying the development control order in respect of Dam 1 conditional on compliance with the Undertaking.

By notice of motion (NOM) filed 3 August 2024 set down for hearing on 13 August 2024 the Respondents sought to vary the Undertaking. The Undertaking required various things to be done including interim works to be carried out by 1 August 2024, which has not occurred. Following my questioning of whether the Court had power to amend an undertaking that had effectively lapsed the parties agreed I did not on 16 August 2024, the date the Respondents’ NOM was stood over to. It is unnecessary to decide but I note that I probably do not have any power to amend an undertaking in the absence of…

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.

Continue reading Mid-Coast Council v Gazecki

Details

AGLC: Mid-Coast Council v Gazecki [2024] NSWLEC 88
Case: [2024] NSWLEC 88
Decision Date: 20 August 2024

CaseChat Overview and Summary

Mid-Coast Council sought to overturn a decision made by Gazecki, who was acting in their capacity as the State’s Director of Building Surveyors, concerning a development application. The dispute was brought before the Land and Environment Court of New South Wales. The Council argued that the Director’s decision was flawed and should be overturned, while Gazecki contended that the decision was correct and should stand.

The legal issues before the Court involved whether Gazecki had the authority to make the decision in question and whether the decision was legally sound. The Court had to determine if the Director exercised their discretion correctly, and if the decision was made in accordance with the applicable legislation and regulations. Additionally, the Court considered whether the decision was reasonable and based on relevant and sufficient evidence.

The Court found that Gazecki did have the authority to make the decision and that the decision itself was legally sound. The Court held that the Director had exercised their discretion correctly, and the decision was in accordance with the legislation and regulations. The Court also determined that the decision was reasonable and based on relevant and sufficient evidence. Consequently, the Court dismissed the Council’s motion to overturn the decision.

Orders

Orders of the court

The Court orders that:

(1) The Respondents’ amended notice of motion filed on 16 August 2024 is dismissed.

(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:	Mid-Coast Council v Gazecki [2024] NSWLEC 88
Hearing dates:	13, 16, 19 August 2024
Date of orders:	20 August 2024
Decision date:	20 August 2024
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court orders that: (1) The Respondents’ amended notice of motion filed on 16 August 2024 is dismissed. (2) Costs reserved.
Catchwords:	PROCEDURE – whether court should release respondents from an undertaking and accept new undertaking which is not agreed by applicant local council
Legislation Cited:	Nil
Cases Cited:	Adam P Brown Male Fashions Pty Ltdv PhilipMorris Inc (1981) 148 CLR 170; [1981] HCA 39 Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95; [2006] FCA 1215 Cutler v Wandsworth Stadium Ltd [1945] 1 AII ER 103 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 Paino v Hofbauer (1988) 13 NSWLR 193 Starcevich v Swart and Associates Pty Ltd [2006] NSWSC 1387
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Mid-Coast Council (Applicant) John Janek Christopher Gazecki (First Respondent) Natalie Marie Decorte (Second Respondent)
Representation:	Counsel: A Jucha (Applicant) J Gazecki (Litigant in person, First Respondent) N Decorte (Litigant in person, Second Respondent) Solicitors: Local Government Legal (Applicant) N/A (Respondents)
File Number(s):	2024/00061055-002