Reysson v Roads and Traffic Authority - [2011] NSWLEC 153

Land and Environment Court

New South Wales

Medium Neutral Citation: Reysson v Roads and Traffic Authority [2011] NSWLEC 153
Hearing dates: 2 September 2011
Decision date: 02 September 2011
Jurisdiction: Class 3
Before: Craig J
Decision:
1. I order that there be separately determined prior to the hearing of the proceedings the following question -
"Whether development consent DA 92/118 granted by Tweed Shire Council on 21 January 1993 had, by 21 January 1998, lapsed within the meaning of the Environmental Planning and Assessment Act 1979 as the lapsing provisions of that Act then operated."
2. Make orders in accordance with the Short Minutes of Order initialled by HH and placed with the papers.
3. Give liberty to the parties to approach the Registrar forthwith to obtain a hearing of the preliminary question for 2 days commencing on 29 September 2011.
4. Exhibits may be returned.
5 Cost of the motion to be costs in the determination of the preliminary point.

Catchwords: PROCEDURE - interlocutory application for separate question to be heard - whether determination of separate question would reduce costs and hearing time - question severable from principal issues - whether development consent granted in respect of acquired land had lapsed - significant fact in determining market value - application granted
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Land Acquisition (Just Terms Compensation) Act 1991
Uniform Civil Procedure Rules, r. 28.2
Cases Cited: Strathfield Municipal Council v Poynting (2001) 116 LGERA 319
Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138
Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193
Category: Interlocutory applications
Parties: Reysson Pty Ltd (Applicant)
Roads and Traffic Authority of New South Wales (Respondent)
Representation: Mr T F Robertson SC with Mr P Larkin (Applicant)
Mr N M Eastman (Respondent)
Storey & Gough Lawyers (Applicant)
Corrs Chambers Westgarth (Respondent)

File Number(s): 30921 of 2010

EX TEMPORE Judgment

Land owned by Reysson Pty Ltd ( Reysson ) at Banora Point on the Far North Coast of New South Wales was compulsorily acquired by the respondent on 20 April 2010. In proceedings commenced on 15 November 2010 pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 ( the Just Terms Act ), Reysson seeks determination of compensation payable to it in accordance with the provisions of Div 4 of Pt 3 of that Act by reason of that acquisition. The proceedings have not yet been listed for hearing.

In compliance with directions made by the Court, Reysson has filed expert planning and valuation evidence. For its part, the respondent has filed evidence from experts engaged in a far wider range of disciplines. They include experts not only in the disciplines of planning and valuation but also in ecology, hydrology, engineering, soil science, bush fire management and traffic engineering.

Reysson now applies by motion pursuant to Pt 28, r 28.2 of the Uniform Civil Procedure Rules ( UCPR ) for determination of a…

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: [2011] NSWLEC 153
Decision Date: 02 September 2011

CaseChat Overview and Summary

The case of Reysson v Roads and Traffic Authority involves a dispute regarding the validity of a development consent granted by the Tweed Shire Council under the Environmental Planning and Assessment Act 1979. The respondent, Roads and Traffic Authority, sought to have the consent declared lapsed, arguing that it had not been utilised within the prescribed timeframe. The applicant, Reysson, contested this claim, asserting that the consent remained valid and enforceable. The matter was brought before the court to determine whether the development consent had indeed lapsed as of a specified date.

The court was required to decide whether the development consent granted by the Tweed Shire Council on 21 January 1993 had lapsed by 21 January 1998 under the then-operative provisions of the Environmental Planning and Assessment Act 1979. This involved interpreting the relevant statutory provisions and applying them to the facts of the case to determine the validity of the consent. The court needed to consider the legislative framework governing the issuance and lapsing of development consents, as well as any relevant case law or statutory interpretations that might inform its decision.

In its reasoning, the court recognised the importance of determining the precise date on which the development consent lapsed, if at all, in order to resolve the dispute between the parties. The court ordered that the question of the consent's validity be separately determined before proceeding with the main proceedings. It granted the parties liberty to approach the Registrar to schedule a hearing of this preliminary question, ensuring that the matter was resolved expeditiously. The court also made orders regarding the handling of exhibits and the allocation of costs, reflecting its approach to managing the proceedings efficiently.

The final orders of the court included a direction that the validity of the development consent be determined prior to further proceedings, with a hearing scheduled for two days commencing on 29 September 2011. The court also granted liberty to the parties to approach the Registrar for the scheduling of this hearing and ordered that costs associated with the motion be considered as costs in the determination of the preliminary point. These orders were intended to facilitate a clear and timely resolution of the issue at hand, allowing the main proceedings to proceed without further delay.

Orders

Orders of the court

1. I order that there be separately determined prior to the hearing of the proceedings the following question -

"Whether development consent DA 92/118 granted by Tweed Shire Council on 21 January 1993 had, by 21 January 1998, lapsed within the meaning of the Environmental Planning and Assessment Act 1979 as the lapsing provisions of that Act then operated."

2. Make orders in accordance with the Short Minutes of Order initialled by HH and placed with the papers.

3. Give liberty to the parties to approach the Registrar forthwith to obtain a hearing of the preliminary question for 2 days commencing on 29 September 2011.

4. Exhibits may be returned.

5 Cost of the motion to be costs in the determination of the preliminary point.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Reysson v Roads and Traffic Authority [2011] NSWLEC 153
Hearing dates:	2 September 2011
Decision date:	02 September 2011
Jurisdiction:	Class 3
Before:	Craig J
Decision:	1. I order that there be separately determined prior to the hearing of the proceedings the following question - "Whether development consent DA 92/118 granted by Tweed Shire Council on 21 January 1993 had, by 21 January 1998, lapsed within the meaning of the Environmental Planning and Assessment Act 1979 as the lapsing provisions of that Act then operated." 2. Make orders in accordance with the Short Minutes of Order initialled by HH and placed with the papers. 3. Give liberty to the parties to approach the Registrar forthwith to obtain a hearing of the preliminary question for 2 days commencing on 29 September 2011. 4. Exhibits may be returned. 5 Cost of the motion to be costs in the determination of the preliminary point.
Catchwords:	PROCEDURE - interlocutory application for separate question to be heard - whether determination of separate question would reduce costs and hearing time - question severable from principal issues - whether development consent granted in respect of acquired land had lapsed - significant fact in determining market value - application granted
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land Acquisition (Just Terms Compensation) Act 1991 Uniform Civil Procedure Rules, r. 28.2
Cases Cited:	Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138 Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193
Category:	Interlocutory applications
Parties:	Reysson Pty Ltd (Applicant) Roads and Traffic Authority of New South Wales (Respondent)
Representation:	Mr T F Robertson SC with Mr P Larkin (Applicant) Mr N M Eastman (Respondent) Storey & Gough Lawyers (Applicant) Corrs Chambers Westgarth (Respondent)
File Number(s):	30921 of 2010