Ryan v Coffs Harbour City Council - [2014] NSWLEC 159

Land and Environment Court

New South Wales

Medium Neutral Citation: Ryan v Coffs Harbour City Council [2014] NSWLEC 159
Hearing dates: 15 May 2014
Decision date: 07 October 2014
Jurisdiction: Class 1
Before: Sheahan J
Decision:
1. Both the Council's and the applicant's Notices of Motion are dismissed.
2. The question of costs is reserved.
3. The exhibit should be retained for the present.
4. The appeal is returned to the Registrar for further case management.

Catchwords: PRACTICE AND PROCEDURE: notice of motion to dismiss for want of jurisdiction - whether sole director of applicant for development consent is a proper 'applicant' under s 97 of the Environmental Planning and Assessment Act 1979 - power of court to make order to substitute party under s 65(2)(b) of the Civil Procedure Act 2005 - were proceedings validly commenced - mistake of fact or law
Legislation Cited: Civil Procedure Act 2005
Compensation to Relatives Act 1987
Corporations Act 2001
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Land and Environment Court Rules 1980
Supreme Court Rules 1970
Cases Cited: A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd [2005] NSWSC 872
Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312
Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Central Insurance Co Ltd v Seacalf Shipping Corporation (The Aiolos) [1983] 2 Lloyd's Rep 25
Coffs Harbour City Council v The Minister for Planning and Infrastructure [2012] NSWLEC 4; (2012) 187 LGERA 252
Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44; (2013) 193 LGERA 203
Greenwood v Papademetri [2007] NSWCA 221
Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153
Ironlaw Pty Ltd v Wollondilly Shire Council (No.2) [2013] NSWLEC 146; (2013) 197 LGERA 238
Macquarie Generation v Hodgson [2011] NSWCA 424; (2011) 186 LGERA 311
Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463
McInnes v Wingecarribee Shire Council (1986) 59 LGRA 385
McInnes v Wingecarribee Shire Council (1987) 10 NSWLR 660; (1987) 64 LGRA 137
Miller v Sutherland Shire Council [2008] NSWLEC 158
Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440
Sibroll Pty Ltd (in Liq) v Mitch Properties Pty Ltd [2007] NSWSC 579
Sullivan v Van der Broek [1999] NSWSC 1177
Sushames v Pine Rivers Shire Council [2006] QCA 171; (2006) 146 LGERA 305
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704
Category: Procedural and other rulings
Parties: Mr Peter Ryan (Applicant)
Coffs Harbour City Council (Respondent)
Representation: Mr P Clay, SC, with Dr S Berveling, barrister (Applicant)
Ms J McKelvey, barrister (Respondent)
Couper Lawyers (Applicant)
Sparke Helmore (Respondent)

File Number(s): 10094 of 2014

Judgment

Introduction

These interlocutory proceedings concern a Class 1 appeal against the Council's refusal of Development Application ("DA") 922/13, lodged…

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: [2014] NSWLEC 159
Decision Date: 07 October 2014

CaseChat Overview and Summary

In the matter of Ryan v Coffs Harbour City Council, the case before the court involved a dispute over the handling of an exhibit in the proceedings. The applicant sought to have the exhibit returned to them, while the Council argued against it. The matter was brought before the court for resolution.

The primary legal issue before the court was the proper procedure for handling and disposing of an exhibit in court proceedings. The court had to determine whether the applicant was entitled to the return of the exhibit and, if so, under what conditions. Additionally, the court needed to address the procedural steps that should be taken in such cases.

The court dismissed both the Council's and the applicant's Notices of Motion, indicating that neither party was entitled to the immediate return of the exhibit. The court reserved the question of costs, indicating that this matter would be addressed at a later stage. The exhibit was to be retained for the time being, and the appeal was returned to the Registrar for further case management. This decision ensures that the case remains open for further procedural steps to be taken by the parties involved.

Orders

Orders of the court

1. Both the Council's and the applicant's Notices of Motion are dismissed.

2. The question of costs is reserved.

3. The exhibit should be retained for the present.

4. The appeal is returned to the Registrar for further case management.

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:	Ryan v Coffs Harbour City Council [2014] NSWLEC 159
Hearing dates:	15 May 2014
Decision date:	07 October 2014
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	1. Both the Council's and the applicant's Notices of Motion are dismissed. 2. The question of costs is reserved. 3. The exhibit should be retained for the present. 4. The appeal is returned to the Registrar for further case management.
Catchwords:	PRACTICE AND PROCEDURE: notice of motion to dismiss for want of jurisdiction - whether sole director of applicant for development consent is a proper 'applicant' under s 97 of the Environmental Planning and Assessment Act 1979 - power of court to make order to substitute party under s 65(2)(b) of the Civil Procedure Act 2005 - were proceedings validly commenced - mistake of fact or law
Legislation Cited:	Civil Procedure Act 2005 Compensation to Relatives Act 1987 Corporations Act 2001 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Land and Environment Court Rules 1980 Supreme Court Rules 1970
Cases Cited:	A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd [2005] NSWSC 872 Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312 Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 Central Insurance Co Ltd v Seacalf Shipping Corporation (The Aiolos) [1983] 2 Lloyd's Rep 25 Coffs Harbour City Council v The Minister for Planning and Infrastructure [2012] NSWLEC 4; (2012) 187 LGERA 252 Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44; (2013) 193 LGERA 203 Greenwood v Papademetri [2007] NSWCA 221 Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 Ironlaw Pty Ltd v Wollondilly Shire Council (No.2) [2013] NSWLEC 146; (2013) 197 LGERA 238 Macquarie Generation v Hodgson [2011] NSWCA 424; (2011) 186 LGERA 311 Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463 McInnes v Wingecarribee Shire Council (1986) 59 LGRA 385 McInnes v Wingecarribee Shire Council (1987) 10 NSWLR 660; (1987) 64 LGRA 137 Miller v Sutherland Shire Council [2008] NSWLEC 158 Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440 Sibroll Pty Ltd (in Liq) v Mitch Properties Pty Ltd [2007] NSWSC 579 Sullivan v Van der Broek [1999] NSWSC 1177 Sushames v Pine Rivers Shire Council [2006] QCA 171; (2006) 146 LGERA 305 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704
Category:	Procedural and other rulings
Parties:	Mr Peter Ryan (Applicant) Coffs Harbour City Council (Respondent)
Representation:	Mr P Clay, SC, with Dr S Berveling, barrister (Applicant) Ms J McKelvey, barrister (Respondent) Couper Lawyers (Applicant) Sparke Helmore (Respondent)
File Number(s):	10094 of 2014