NEW SOUTH WALES COURT OF APPEAL
CITATION: Port Stephens Shire Council v Booth & Ors; Port Stephens Shire Council v Gibson & Anor [2005] NSWCA 323
FILE NUMBER(S):
CA 40517/04
CA 40821/04
HEARING DATE(S): 16 June 2005
JUDGMENT DATE: 27/09/2005
PARTIES:
Matter No. 40517/04:
Port Stephens Shire Council - Appellant
Robert Arthur Booth and Janette Jay Booth - First Respondents
Michael William Burcher - Second Respondent
Matter No. 40821/04:
Port Stephens Shire Council - Appellant
Barry Robert Gibson & Jeanette Olivea Gibson - Respondents
JUDGMENT OF: Beazley JA Giles JA Hunt AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC795 (Newcastle), DC796 (Newcastle), DC812 (Newcastle), DC813 (Newcastle)
LOWER COURT JUDICIAL OFFICER: Sidis DCJ
COUNSEL:
In both matters:
R R Stitt QC & A M Pickles - Appellants
J Sexton SC & R Marshall - Respondents
SOLICITORS:
In both matters:
Riley, Gray-Spencer - Appellants
Carroll & O'Dea - Respondents
CATCHWORDS:
Negligence - council's approval of development and building applications - council's issue of s 149 certificates - land within zone of noise affectation in ANEF - purchasers of land from developer - discussion of duty of care owed by council to purchasers in relation to grant of approvals - whether council in breach of duty of care - whether in breach of duty of care in relation to issue of s 149 certificates - whether defence of good faith under s 149(6) made out - losses claimed included that paid more for land than true value - whether causation of loss established - whether later draft or proposed ANEF with less affectation meant no loss suffered - whether interest properly included in damages. D
LEGISLATION CITED:
DECISION:
(1) In 40517/04, grant leave to appeal and direct the filing of the notices of appeal within seven days; (2) In 40517/04 and 40821/04, appeals dismissed; (3) The claimant/appellant to pay the costs of the opponents/respondents.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40517/04
CA 40821/04
DC 795/99
DC 796/99
DC 812/99
DC 813/99BEAZLEY JA
GILES JA
HUNT AJATuesday 27 September 2005
PORT STEPHENS SHIRE COUNCIL v BOOTH & ORS
PORT STEPHENS SHIRE COUNCIL v GIBSON & ANOR
Judgment
BEAZLEY JA: I agree with Giles JA.
GILES JA: The Moffat family had been established in the Swan Bay area within Port Stephens since 1893, originally as timber cutters and then as oyster farmers. In the 1960s an oyster shed was built on their land for use in oyster processing. In the early 1970s the shed was converted into a restaurant known as Moffat’s Oyster Barn.
On 17 February 1993 a development application was lodged by Lloyd Moffat Investments Pty Ltd (“LMI”) with Port Stephens Shire Council (“the Council”) for the development of a budget level holiday cabin resort on the family’s land, to be known as Fisherman’s Village. The proposed development involved construction of forty one new cabins, to be used with an existing four cabins and the restaurant as an eco-friendly…
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- Case
- [2005] NSWCA 323
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the Council owed a duty of care to the purchasers of land in relation to its approval of development and building applications. It also had to consider whether the Council breached any such duty of care, and specifically whether it breached its duty in issuing section 149 certificates. Further issues included whether the defence of good faith under section 149(6) was made out, whether the purchasers had established causation of their claimed losses, and whether the inclusion of interest in the damages awarded was proper. The Court also considered the impact of a later draft or proposed ANEF (Australian Noise Exposure Forecast) with less noise affectation on the existence of loss.
The Court of Appeal dismissed the appeals. While the specific reasoning for the dismissal is not detailed in the provided text, the outcome indicates that the Court found no error in the decision of the lower court regarding the Council's liability or the purchasers' claims. The appeals were dismissed, and the claimant/appellant was ordered to pay the costs of the opponents/respondents.
Orders
Orders of the court
(1) In 40517/04, grant leave to appeal and direct the filing of the notices of appeal within seven days; (2) In 40517/04 and 40821/04, appeals dismissed; (3) The claimant/appellant to pay the costs of the opponents/respondents.
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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