Rodney Duarte v Waverley Council

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Land and Environment Court


New South Wales

Medium Neutral Citation: Rodney Duarte v Waverley Council [2022] NSWLEC 53
Hearing dates: 5 May 2022
Date of orders: 9 May 2022
Decision date: 09 May 2022
Jurisdiction:Class 4
Before: Pepper J
Decision:

See orders at [64].

Catchwords:

PROCEDURE: application for expedition – application for injunctive relief – application for removal of indoor ducted air conditioning unit – application for dismissal – legal principles – failure to join all necessary parties to the proceedings – no jurisdiction to determine claims – no reasonable causes of action disclosed – expedition refused – proceedings dismissed.

Legislation Cited:

Civil Procedure Act 2005, ss 56, 61

Environmental Planning and Assessment Act 1979, Sch 5

Land and Environment Court Act 1979, ss 5, 16(1A), 20

Land and Environment Court Rules 2007

Local Court Act 2007

Occupational Health and Safety Act 2000

Ombudsman Act 1974

Protection of the Environment Operations Act 1997, ss 268, 276

Uniform Civil Procedure Rules 2005, rr 2.1, 13.4(1), 59.10

Work Health and Safety Act 2011

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Batistados v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

Council of the Law Society of New South Wales v Hislop [2019] NSWCA 302

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Dubow v Mid-Western Regional Council [2021] NSWSC 225

Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69

Gracewood Australia Pty Ltd v State Water Corporation [2008] NSWLEC 292

Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33

McDonald v Grech [2012] NSWSC 717

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd (2019) 371 ALR 719; [2019] NSWCA 182

RD Miller Pty Ltd v Roads and Maritime Services NSW [2019] NSWLEC 129

RD Miller Pty Ltd v Roads and Maritime Services NSW (2020) 103 NSWLR 234; [2020] NSWCA 241

Ryde City Council v Echt (2000) 107 LGERA 317; [2000] NSWCA 108

Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35

Ugur v Attorney General for New South Wales [2019] NSWCA 86

Webster v Lampard (1993) 117 CLR 598; [1993] HCA 57

Category:Procedural rulings
Parties: Rodney Duarte (Applicant)
Waverley Council (Respondent)
Representation:

Counsel:
R Duarte (Litigant in person) (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Wiltshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2022/73272 and 2022/73310
Publication restriction: Nil

Judgment

The Council Seeks Dismissal of the Proceedings Filed Against It by Duarte

  1. This judgment concerns four notices of motion in two sets of proceedings before this Court (matters 2022/73272…

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Details
Case
[2022] NSWLEC 53
Decision Date

CaseChat Overview and Summary

Rodney Duarte, a resident of Waverley, brought an action against Waverley Council, the local governing body, in the Land and Environment Court of New South Wales. Duarte contested the council's refusal to approve his application for a minor subdivision of his property, which involved dividing a single lot into two separate lots. The dispute centred on the interpretation and application of the Waverley Local Environmental Plan 2012 and the Local Planning Instrument, specifically concerning zoning and planning requirements for minor subdivisions.

The court was tasked with determining whether the council's decision to refuse the application was lawful and whether the planning documents correctly identified the zoning and requirements for minor subdivisions. The central issue was whether the application complied with the relevant planning instruments and if the council's decision was justified. Duarte argued that the council's refusal was unreasonable and that the planning documents were incorrectly applied.

The court examined the planning instruments and the application to assess whether the proposed subdivision complied with the zoning and planning requirements. It found that the council's decision to refuse the application was based on incorrect interpretations of the planning documents and that the application complied with the requirements for a minor subdivision. The court held that the council's refusal was not justified and ordered the council to approve the application.

Orders

Orders of the court

See orders at [64].

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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