Parker v Auburn Council - [2000] NSWLEC 127

Land and Environment Court

of New South Wales

CITATION: Parker v Auburn Council [2000] NSWLEC 127

PARTIES: APPLICANT:
Margaret Parker
RESPONDENT
Auburn Council

FILE NUMBER(S): 40285 of 1997

CORAM: Sheahan J

KEY ISSUES: Practice & Procedure :- Interrogatories - appropriateness of questions - answers - level of inquiries required by officer verifying

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 90
Land & Environment Court Rules Part 6, Rule 1(2); Part 24, Rules 6 & 7

CASES CITED: Adams v Dickeson [1974] VR 77 at 79;
Bank of Russian Trade, Limited v British Screen Productions, Limited (1930) 2 KB 90;
Commercial Bank of Australia Ltd v Whinefield [1920] VLR 225;
Douglas v Morning Post (1923) 39 TLR 402;
Gilchrist v R Wallace Mitchell Pty Ltd [1972] VR 481;
Grassmere Estate Co Ltd v Illingworth (1889) 15 ALT 687;
Kelly & Anor v Raymor (Illawarra) Pty Ltd (1981) 1 NSWLR 720;
Looker v Murphy (1889) 15 VLR 348;
Lyell v Kennedy (No.3) (1884) 27 Ch D 1 at 16;
May v Bowering [1928] SASR 226;
Parramatta City Council v Pestell (1972) 128 CLR 305;
Potts v Invercargill City Council [1985] 1 NZLR 609;
Sharpe v Smail (1975) 49 ALJR 130;
Spedley Securities Ltd (In Liq) v B R Yuill & Ors [No.4] (1991) 5 ACSR 758;
Stanfield Properties Ltd v National Westminster Bank plc (London & County Securities Ltd, third party) (1983) 2 All ER 249;
Sumitomo Life Realty (Aust) Ltd v Grace Bros Holdings Ltd, Coles Myer NSW Ltd & Sydney City Council (1994) 83 LGERA 46;
Tooth & Co Ltd v Lane Cove Municipal Council (No.4) (1968) 2 NSWLR 17

DATES OF HEARING: 25/05/2000

DATE OF JUDGMENT:
06/22/2000

LEGAL REPRESENTATIVES:
APPLICANT
Mr T F Robertson (Barrister)
Solicitors:
Woolf Asociates
RESPONDENT:
Mr J A Ayling (Barrister)
Solicitors:
Abbott Tout

JUDGMENT:

IN THE LAND AND Matter No: 40285 of 1997

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 22 June 2000

MARGARET PARKER

Applicant

AUBURN COUNCIL

Respondent

JUDGMENT

Introduction

1. This judgment concerns the administration of interrogatories . In an earlier unpublished judgment I dealt with the questions, and the primary focus of these reasons will be the answers. However, Counsel for the Council has suggested that I repeat in this judgment my thinking on the earlier issue about the questions, and I will do so.

2. Dr Parker owns land at 138 John Street Lidcombe, adjacent to a Caltex Service Station. On 18 November 1997 she commenced these proceedings, seeking a declaration that Auburn Council’s development consent, dated 5 November 1997, allowing Wesfarmers Kleenheat Gas Pty Ltd to install a 23,000 litre underground LPG tank and dispensing equipment at the service station, is void.

3. Details of the applicant’s claim are provided in her Points of Claim, filed on 4 September 1998. Those Points of Claim deal, inter alia, with allegations regarding State Environmental Planning Policy 33, Council’s assessment of the development application under s 90 of the then Environmental Planning &…

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: [2000] NSWLEC 127
Decision Date: 06/22/2000

CaseChat Overview and Summary

The case of Parker v Auburn Council involved a dispute over the administration of interrogatories in a planning matter before the Land and Environment Court of New South Wales. Margaret Parker sought a declaration that the Auburn Council's development consent for an LPG tank installation was void, and she filed interrogatories to obtain information from the Council regarding its decision-making process. The Council initially responded with objections and inadequate answers, prompting Parker to seek an order for proper responses. The court had previously amended the interrogatories to clarify the term "determination" as "decision or finding." The Council's General Manager, Lea Rosser, attempted to answer the interrogatories based on interviews with Councillors, who claimed no recollection of the relevant meeting. Parker argued that Rosser failed to make proper inquiries and did not sufficiently rely on the knowledge and information of the Council. The court considered relevant legal principles and authorities, concluding that Rosser's inquiries were inadequate and that the Council had not properly addressed the interrogatories. The court ordered the Council to provide verified, proper answers and set a deadline for filing and serving these answers. The Council was also ordered to pay Parker's costs for the most recent notice of motion, while each party was to bear their own costs for the earlier notice of motion.

Orders