Miller v Sutherland Shire Council - [2008] NSWLEC 158

Land and Environment Court

of New South Wales

CITATION: Miller v Sutherland Shire Council [2008] NSWLEC 158

PARTIES:
APPLICANT:
John Miller
FIRST RESPONDENT:
Anthony Kenneth Fairclough
THIRD RESPONDENT:
Martina Fairclough
FOURTH RESPONDENT:
Catherine Smythe trading as Brook & Byrne Waterfront Constructions

FILE NUMBER(S): 40525 of 2007

CORAM: Biscoe J

KEY ISSUES:
Development Application :- applicant on development application was agent for undisclosed principal - agent directs that her name be removed from application and in effect resigns as agent - whether principal can elect to be substituted as applicant on development application.
Practice and Procedure:- whether period of suspension of a demolition order should be extended.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 78, 78A
Environmental Planning and Assessment Regulation 2000, Part 6

CASES CITED: Miller v Sutherland Shire Council [2007] NSWLEC 700

DATES OF HEARING: 7 April 2008

EX TEMPORE JUDGMENT DATE: 7 April 2008

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Clay, barrister
SOLICITORS
Haydon Fowler Corbett
FIRST RESPONDENT:
Mr P Brown
SOLICITORS
Home Wilkinson Lowry (inc Abbott Tout)
SECOND AND THIRD RESPONDENTS:
Mr A and Mrs M Fairclough
FOURTH RESPONDENT:
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

7 APRIL 2008

40525 of 2007

JOHN MILLER v SUTHERLAND SHIRE COUNCIL & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: On 12 October 2007 I upheld an uncontested challenge to the validity of a development consent: Miller v Sutherland Shire Council [2007] NSWLEC 700. Orders 2 and 3 made on that date provided for the second and third respondents, Mr and Mrs Fairclough, to demolish a jetty on the property at 12 Moombara Crescent Lilli Pilli, suspended for six months to enable them to take steps to regularise a breach of the Environmental Planning and Assessment Act 1979, by among other things, an amendment to the development application so as to ensure that the jetty and any ancillary structures are not on the applicant’s property.

2 Now before the Court is a notice of motion by Mr and Mrs Fairclough seeking an extension of the period of suspension and, in effect, an order that they are entitled to be substituted for the fourth respondent as the applicant on the development application. The applicant opposes such relief on discretionary grounds and, alternatively, proposes certain orders. The council adopts a neutral position but, like the applicant, has assisted the Court on legal issues, particularly given that Mr and Mrs Fairclough are legally unrepresented today.

3 The fourth respondent, Catherine Smythe trading as Brook & Byrne Waterfront Constructions, was the applicant on the development application and was served with a copy of the notice of motion but has not appeared today. Her solicitor was a signatory to the consent orders of 12 October 2007

Extension of Period of Suspension of Demolition Order

4 The first issue is whether there should be an extension of the six month period of suspension of the demolition order, which expires in a few days. The applicant submits that…

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.

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Details

Case: [2008] NSWLEC 158
Decision Date: 7 April 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, John Miller brought a motion against the Sutherland Shire Council and others concerning a development application and the enforcement of a demolition order. The primary dispute involved the validity of a development consent and the right of the Faircloughs to be substituted for the original applicant, Catherine Smythe, on the development application. The court also had to decide on extending the period of suspension of the demolition order. The legal issues centred on whether the Faircloughs could be substituted for the fourth respondent as the applicants on the development application, and if so, under what conditions. Additionally, the court needed to decide whether the period of suspension of the demolition order should be extended.

The court, presided over by Biscoe J, found that despite the Faircloughs' delay in amending the development application, no significant prejudice had occurred to the other parties. Therefore, the court decided to extend the period of suspension of the demolition order for four months. The court further ruled that the Faircloughs could be substituted for the fourth respondent as the applicants on the development application because the fourth respondent had effectively resigned as the agent for the Faircloughs. The court granted the Faircloughs the right to be substituted as applicants on the development application, provided that the council would proceed with the development application based on this substitution. The court also ordered that the Faircloughs would pay interest on their previous costs order from the date of that order and that the Faircloughs would bear the costs of the motion before the court. The court reserved the question of costs between the Faircloughs and the fourth respondent. Finally, the court ordered that the sale of the property would include conditions to ensure compliance with the court's orders.

Orders