Mosman Municipal Council v Sahade (No. 2)

[1999] NSWLEC 201

Land and Environment Court

of New South Wales

CITATION:

Mosman Municipal Council v Sahade (No. 2) [1999] NSWLEC 201

PARTIES

APPLICANT:
Mosman Municipal Council

RESPONDENT:
Sahade

NUMBER:

40171 of 1998

CORAM:

Talbot J

KEY ISSUES:

Practice & Procedure :- no case to answer

LEGISLATION CITED:

DATES OF HEARING:

03/01/1999; 03/02/1999

EX TEMPORE JUDGMENT DATE:

03/01/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Ms S Duggan (Barrister)

SOLICITORS:
Hill Thompson Sullivan

RESPONDENT:
Mr M Sahade (Barrister)

SOLICITORS:
n/a

JUDGMENT:

IN THE LAND AND Matter No. 40171 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 1 March 1999

Mosman Municipal Council
Applicant

v

Anthony Victor Sahade (No. 2)

Respondent

REASONS FOR JUDGMENT ON APPLICATION BY RESPONDENT THAT THERE WAS NO CASE TO ANSWER


1. HIS HONOUR: The respondent makes a submission that the applicant has not by its evidence in chief shown there is a case against the respondent such that it requires the respondent to go into evidence.

2. The primary evidence upon which the council relies on the issue of liability of the respondent, Anthony Sahade, is that of its officer, Brett Clabburn, who on 4 September 1998 swore an affidavit, which was not objected to, that the respondent is the registered proprietor of the property.

3. Further, evidence has been produced in documentary form which shows that a notice of determination of a development application in respect of the land the subject of the proceedings was addressed to Anthony Sahade at 1/6 Buckhurst Avenue, Point Piper. Similarly on 14 October 1997 a further letter of approval to a building application in respect of the same site was forwarded to the same addressee.

4. A letter of complaint dated 24 August 1998 was also addressed in exactly the same way.

5. There is no evidence before the Court which suggests that at any time the respondent has complained or even indicated in some way that he is not involved in the operations which are alleged to be carried on at the subject premises. Some attempt was made in cross examination to raise questions regarding the name of the operator of the business. Mr Sahade in submissions has sought to rely on authorities about notice given to purchasers and the like in regard to who might be occupying a property.

6. Those cases are to be distinguished from the present in that it is not a question of notice. Under the Local Government Act 1993 (the LG Act) and the Environmental Planning and Assessment Act 1979 (the EP&A Act) the council has responsibilities in regard to the administration of, inter alia, approvals and consents given pursuant to the legislation. The consents and approvals are forthcoming to an applicant who in many cases is the owner, or to an applicant who makes the application with the consent of the owner. Section 697 of the LG Act provides, that in any legal proceedings under that Act or the EP&A Act (being any other Act) instituted by or under the direction of or on behalf of the council, proof is not required that the defendant is or at any relevant time was the owner or occupier of any land in question, until evidence is given to the contrary.

7. It is not the case that there is no evidence of an interest of the named respondent in the land nor in the subject consents and approvals.

8. If indeed the respondent is not the owner or occupier of the land in question, it is a matter he can prove. Section 697 does no more than direct that the council is not required to meet the assertion until there is evidence to the contrary.

9. The evidence implicates the respondent as least sufficiently for present purposes. In cross examination it was acknowledged by the council officer Mr Clabburn that he had a conversation with the respondent on the site. The assertion of ownership is unchallenged. There is also evidence which suggests the respondent has acted in reliance upon the consent and approval granted by the council.

10. Therefore s 697 presently discharges the council from the formal responsibility of proving as a fact that the defendant is or at any of the relevant times was the owner or occupier of the land in question, at least until there is evidence given to the contrary. Accordingly, the Court is satisfied that at this stage there is a case which the respondent is required to meet.