Murray v Wingecarribee Shire Council - [2004] NSWSC 19

CITATION: Murray v Wingecarribee Shire Council [2004] NSWSC 19

HEARING DATE(S): 20, 27 and 29 January 2004

JUDGMENT DATE:
29 January 2004

JURISDICTION:
Common Law
Administrative Law List

JUDGMENT OF: Hamilton J

DECISION: Application to transfer proceedings from Supreme Court to Land and Environment Court refused.

CATCHWORDS: ENVIRONMENT AND PLANNING LAW [478] - Courts and tribunals with environment jurisdiction - Land and Environment Court - Scope of jurisdiction generally - Exclusive jurisdiction to enforce environmental laws - Question whether Council has power to ban political advertising generally - Whether within exclusive jurisdiction - Whether proceedings should be transferred from Supreme Court to Land and Environment Court.

LEGISLATION CITED: Land and Environment Court Act 1979 ss 20, 71 & 72

CASES CITED: Aboriginal Community Benefit Fund Pty Ltd v The Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
Bathurst City Council v Saban (1985) 55 LGRA 165
Bathurst City Council v Saban [No 2] (1986) 58 LGRA 201
Bryants Manly Vale Pty Limited v Francis (1986) 4 NSWLR 635
Lester v New South Wales Aboriginal Land Council [2001] NSWSC 891
Sydney Neighbourhood Assoc Inc v South Sydney City Council [2000] NSWSC 176
Waverley Council v Refkin Pty Ltd [2000] NSWSC 242

PARTIES :
Malcolm John Murray (P)
Wingecarribee Shire Council (D)

FILE NUMBER(S): SC 30118/03

COUNSEL: J E Armfield (P)
B Bilinsky, Solicitor (D)

SOLICITORS: Aston Reid Lawyers (P)
B Bilinsky & Co (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HAMILTON J

THURSDAY, 29 JANUARY 2004

30118/03 MURRAY v WINGECARRIBEE SHIRE COUNCIL
JUDGMENT

1 HIS HONOUR: Section 71 of the Land and Environment Court Act 1979 (“the LECA”) relevantly provides that proceedings of the kind referred to in s 20(1)(e) of the LECA may not be commenced or entertained in the Supreme Court. Section 20(1)(e) refers to proceedings referred to in subs (2) of s 20. The relevant paragraphs of subs (2) specify proceedings:

“(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,

LECA

2 Before me is an…

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.

Keep reading for free

Create a free CaseChat account to read Murray v Wingecarribee Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWSC 19
Decision Date: 29 January 2004

CaseChat Overview and Summary

The case of Murray v Wingecarribee Shire Council involved a challenge by the appellant to a decision of the respondent Council that had banned political advertising in the Shire. The Land and Environment Court was asked to consider the question of whether the Council had the power to generally ban political advertising, and whether this matter fell within the court's exclusive jurisdiction to enforce environmental laws. The Supreme Court had previously transferred the case to the Land and Environment Court, and the appellant questioned whether this transfer was appropriate.

The central legal issues before the court were whether the Council had the general power to ban political advertising and, if so, whether this power fell within the exclusive jurisdiction of the Land and Environment Court to enforce environmental laws. The court needed to determine if the Council's decision to ban political advertising was within its legislative powers and whether this power was related to environmental laws. The court also had to consider whether the proceedings should remain in the Supreme Court or be transferred to the Land and Environment Court.

The court found that the Council did not have the general power to ban political advertising. It was noted that such a ban was not related to environmental laws, and therefore did not fall within the exclusive jurisdiction of the Land and Environment Court. The court held that the Supreme Court had correctly transferred the case to the Land and Environment Court, as the court did have the jurisdiction to hear matters relating to environmental laws. However, the court also held that the proceedings should be returned to the Supreme Court, as the matter did not fall within the exclusive jurisdiction of the Land and Environment Court.

The final orders of the court were that the case should be returned to the Supreme Court, and that the Council did not have the general power to ban political advertising. The court did not find that the matter fell within its exclusive jurisdiction to enforce environmental laws, and therefore the transfer to the Land and Environment Court was not appropriate.

Orders