Port Stephens Shire Council v Booth

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 813/99

BEAZLEY JA
GILES JA
HUNT AJA

Tuesday 27 September 2005

PORT STEPHENS SHIRE COUNCIL v BOOTH & ORS
PORT STEPHENS SHIRE COUNCIL v GIBSON & ANOR

Judgment

1. BEAZLEY JA:  I agree with Giles JA.

2. 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. 

3. 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…