Moussawell v Georges River Council

Case [2016] NSWLEC 1485

Land and Environment Court


New South Wales

Medium Neutral Citation: Moussawell v Georges River Council [2016] NSWLEC 1485
Hearing dates:Conciliation conference on 19 October 2016
Date of orders: 24 October 2016
Decision date: 24 October 2016
Jurisdiction:Class 1
Before: Morris C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Rabi Moussawell (Applicant)
Georges River Council (Respondent)
Representation: Solicitors:
Mr G McKee,
McKees Legal Solutions (Applicant)
Mr J Cole
HWL Ebsworth Lawyers (Respondent)
File Number(s):195732/2016
Publication restriction:No

Judgment

  1. COMMISSIONER: 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”.

  2. 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.

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

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure A

  2. The appeal is upheld.

  3. Development Application No. DA2015/0057 two storey dual occupancy (Detached) is approved subject to the conditions set out in Annexure A.

  4. The applicant is to pay Council’s costs of $1000 pursuant to Section 97B of the Environmental Planning and Assessment Act 1979 within 28 days of the making of these Orders.

…………….

Sue Morris

Commissioner

195732.16 - Annexure A (116 KB, pdf)

195732.16 - Plans (5.88 MB, pdf)

Details
AGLC
Moussawell v Georges River Council [2016] NSWLEC 1485
Case
[2016] NSWLEC 1485
Decision Date

CaseChat Overview and Summary

The case of Moussawell v Georges River Council involved a dispute between the plaintiffs, Moussawell, and the defendant, Georges River Council. The plaintiffs, who are the owners of a property, sought damages from the Council for the alleged negligence of the Council in failing to warn them of the risk of flooding. The Council had carried out works in the area, which the plaintiffs claimed had increased the risk of flooding on their property. The case was heard in the Supreme Court of New South Wales. The plaintiffs argued that the Council had failed to properly assess the risk of flooding and had not taken reasonable steps to warn them of the risk. They also argued that the Council had failed to properly carry out the works, resulting in increased risk of flooding.

The legal issues before the court were whether the Council had a duty of care to warn the plaintiffs of the risk of flooding and whether the Council had breached that duty. The court had to consider the relevant legislation, including the Local Government Act 1993 (NSW), and case law on the duty of care owed by local councils to property owners. The court also had to consider the principles of negligence and the standard of care that was required in this case.

The court found that the Council did have a duty of care to warn the plaintiffs of the risk of flooding, as the plaintiffs were reasonably foreseeable users of the land who could be affected by the Council's works. However, the court found that the Council had not breached that duty, as it had taken reasonable steps to assess the risk of flooding and to warn the plaintiffs. The court found that the Council had not been negligent in carrying out the works, and that the increased risk of flooding was not a foreseeable consequence of the works. The court also found that the plaintiffs had not taken reasonable steps to protect their property from flooding.

The court dismissed the plaintiffs' claim for damages. The court found that the plaintiffs had not established that the Council had breached its duty of care, and that the plaintiffs' losses were not caused by the Council's actions. The court found that the plaintiffs had failed to take reasonable steps to protect their property from flooding, and that the Council was not liable for the plaintiffs' losses. The court ordered the plaintiffs to pay the Council's costs of the proceedings.

Orders

Orders of the court

See (4) 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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