Porter v Hunters Hill Council - [2003] NSWLEC 179

Reported Decision: (2003) 131 LGERA 144

Land and Environment Court

of New South Wales

CITATION: Porter & Anor v Hunters Hill Council [2003] NSWLEC 179

PARTIES:
APPLICANTS
Graham William Porter and Meredith Ruth Porter
RESPONDENT
Hunters Hill Council

FILE NUMBER(S): 40313 of 2002

CORAM: Pain J

KEY ISSUES: Jurisdiction :- land compulsorily acquired pursuant to LEP by commencement of separate proceedings that are already concluded - Council refused to give Applicants a notice under s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 - Applicants seek delivery by Council of a notice under s 42 in new Class 4 proceedings - jurisdiction of Court to hear and dispose of proceedings - whether jurisdiction arises because the obligation to pay compensation is inherent in the obligation to acquire - whether jurisdiction arises under s 24 of the Land and Environment Court Act 1979 - whether ancillary jurisdiction under s 16(1A) of Land and Environment Court Act 1979 can be invoked - proceedings dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 27
Hunters Hill Local Environmental Plan cl 24
Land Acquisition (Just Terms Compensation) Act 1991 s 4, s 5, s 7, s 11, s 12, s 13, s 14, s 15, s 19, s 20, s 28, s 37, s 39, s 41, s 42, s 43, s 44, s 47, s 55, s 66, s 67, s 68
Land and Environment Court Act 1979 s 16(1) , s 16(1A), s 19, s 20, s 24, s 25, s 31, s 32
Land and Environment Court Rules 1996 Pt 6 r 1
Local Government Act 1993 s 186
Supreme Court Rules 1970 Pt 8 r 8, Pt 13 r 5(1)

CASES CITED: Davey v North Sydney Council [2002] NSWSC 662;
Duncan v Moore (1999) 103 LGERA 312;
McBaron v Roads and Traffic Authority of New South Wales (1995) 87 LGERA 238;
Mitchell v Waugh (1993) 82 LGERA 44;
N Stephenson Pty Ltd v Roads and Traffic Authority of New South Wales (1994) 83 LGERA 248;
Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95;
Nelson v Ballina Shire Council (1993) 80 LGERA 271;
Nix and Dunn v Pittwater Council (1994) 84 LGERA 199;
NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403;
Pittwater Municipal Council v Nix and Dunn (1993) 80 LGERA 385 at 387;
Scharer v State of New South Wales (2001) 53 NSWLR 299

DATES OF HEARING: 12/05/2003, 17/06/2003

DATE OF JUDGMENT:
08/13/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Mr JA Ayling SC
SOLICITORS
Philip Parbury & Associates
RESPONDENT
Mr P Clay (barrister)
SOLICITORS
Abbott Tout
VALUER-GENERAL
Ms H Roberts (solicitor) (12/05/2003)
Mr JB Maston (barrister) (17/06/2003)
SOLICITORS
Crown Solicitors Office

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40313 of 2003

Pain J

13 August 2003

GRAHAM WILLIAM PORTER AND MEREDITH RUTH PORTER

Applicants

HUNTERS HILL COUNCIL

Respondent

Judgment

Introduction

1. In 2000 the Applicants commenced proceedings in this…

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: [2003] NSWLEC 179
Decision Date: 13/8/2003

CaseChat Overview and Summary

The applicants, Graham William Porter and Meredith Ruth Porter, sought an order from the Land and Environment Court of New South Wales for the respondent, Hunters Hill Council, to deliver a notice of compensation under section 42 of the Land Acquisition (Just Terms Compensation) Act 1991. The applicants claimed that the council had compulsorily acquired their land, but had not given them a notice of compensation as required by the Act. The applicants argued that the court had jurisdiction to hear and dispose of their application on three grounds: the obligation to pay compensation is inherent in the obligation to acquire; the court has direct jurisdiction pursuant to section 24 of the Land and Environment Court Act 1979; and the court has jurisdiction under section 16(1A) of the Land and Environment Court Act 1979. The court rejected all three grounds and dismissed the application. The court held that it was a specialist court with limited jurisdiction and that its jurisdiction could not be widened beyond that which was envisaged by Parliament. The court also held that the applicants' claim was not a claim for compensation but a claim for the council to deliver a document, namely a section 42 notice under the Land Acquisition (Just Terms Compensation) Act 1991. The court further held that section 16(1A) of the Land and Environment Court Act 1979 could only be invoked if there was a matter within jurisdiction in proceedings pending before the court to which another matter in those same proceedings could be said to be ancillary. In this case, there was no such matter within jurisdiction. The court therefore dismissed the application and reserved the question of costs.

Orders