Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Ross v Lane Cove Council [2014] NSWCA 50 Hearing dates: 20 February 2014 Decision date: 13 March 2014 Before: Meagher JA at [1];
Leeming JA at [2];
Tobias AJA at [86]Decision: 1. Extend the time within which to appeal.
2. Appeal allowed.
3. Set aside the orders made on 14 June 2013.
4. Remit the proceeding to the Land and Environment Court for determination in accordance with law.
5. Otherwise dismiss the notices of motion filed 3 December 2013 and 13 February 2014.
6. No order as to the costs of the notices of motion or of the appeal, with the intent that the parties bear their own costs of those motions and the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: LAND AND ENVIRONMENT COURT - enforcement of planning laws - injunction to demolish unauthorised works and reinstate property - whether necessary to join new registered owner - whether order conditional upon new owner's consent - whether new owner should be joined so as to be bound by order - whether sufficient to notify new owner - new owner directly affected and should have been joined - Environmental Planning and Assessment Act 1979 (NSW) s 76A
PRACTICE - parties - obligation to join all parties directly affected by orders sought - whether a person not in breach or threatening to breach a necessary party - circumstances when joinder not necessary considered - effect of Civil Procedure Act 2005 (NSW) ss 56-59 - effect of liberty to apply - orders made in absence of necessary party set aside
PRACTICE - injunctions - need for clarity - construction of order - whether implied condition to obtain owner's consent - whether non party could ignore orderLegislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59
Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 123, 124, 149D, 149E
Supreme Court Act 1970 (NSW), s 63
Supreme Court of Judicature Act 1875 (UK), First Sch, O XVI r 13
Supreme Court Rules 1970 (NSW), Pt 51 r 6(2)
Supreme Court Rules (Amendment No 412) 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.23, 6.24, 12.7, 31.8, 51.9, 51.16, 51.53Cases Cited: Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58
Australian Catholic University v Minister for Planning and Infrastructure [2013] NSWLEC 174
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; 70 NSWLR 201
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Blacktown City Council…
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- Case
- [2014] NSWCA 50
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the Land and Environment Court erred in making orders against a party who was not the registered owner at the time the orders were sought, and whether the new registered owner was a necessary party to the proceedings. Further, the Court considered the implications of the *Civil Procedure Act 2005* (NSW) and the Uniform Civil Procedure Rules 2005 regarding the joinder of parties directly affected by court orders, and the circumstances under which orders made in the absence of a necessary party could be set aside. The clarity and construction of injunctions, particularly whether an implied condition of owner's consent could exist, were also relevant considerations.
The Court of Appeal reasoned that the new registered owner was directly affected by the orders sought by the Council and therefore should have been joined as a party to the proceedings. The Court held that it was insufficient merely to notify the new owner; their joinder was necessary to ensure they were bound by any orders made and to provide them with an opportunity to be heard. Consequently, the Court allowed the appeal, set aside the orders made by the Land and Environment Court on 14 June 2013, and remitted the proceedings for determination in accordance with law. The Court also made no order as to the costs of the appeal or related notices of motion.
Orders
Orders of the court
1. Extend the time within which to appeal.
2. Appeal allowed.
3. Set aside the orders made on 14 June 2013.
4. Remit the proceeding to the Land and Environment Court for determination in accordance with law.
5. Otherwise dismiss the notices of motion filed 3 December 2013 and 13 February 2014.
6. No order as to the costs of the notices of motion or of the appeal, with the intent that the parties bear their own costs of those motions and the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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