Reported Decision: 174 LGERA 129
New South Wales
Court of Appeal
CITATION: Sharples v Minister for Local Government [2010] NSWCA 36 HEARING DATE(S): 15 February 2010
JUDGMENT DATE:
17 March 2010JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; McColl JA at 128 DECISION: (a) Grant leave to appeal in respect of Grounds 1 and 2 of the appellant’s Amended Notice of Appeal filed on 18 May 2009;
(b) Dismiss the appellant’s appeals against the interlocutory decisions of Biscoe J made on 7 November 2008 and the orders of his Honour made on 30 December 2008 and 29 April 2009;
(c) The appellant to pay one half of the third respondent’s costs of the appeal.CATCHWORDS: ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error of law – Failure to take into account a relevant consideration – Determinations by Minister to increase council’s general income – Power of Minister to determine only on application of council made in accordance with applicable guidelines issued by Director-General – Applicable guidelines specified minimum requirements for applications including evidence of community support for proposal and how community was consulted – Requirement of community support and consultation not satisfied – Whether the primary judge erred in not declaring the determinations invalid - ENVIRONMENT AND PLANNING – Courts with environmental jurisdiction – New South Wales – Land and Environment Court – Costs – Public interest – Whether primary judge erred in dealing differentially with each limb of the appellant’s case when assessing costs - PROCEDURE – Application for leave to amend points of claim – Application made on fifth day of hearing when evidence virtually closed and after relevant witnesses had been cross-examined – Application to read an affidavit – Application made on third day of the hearing although affidavit had been served two days previously – Applications dismissed by primary judge – Prejudice to respondents – Adverse effect on timely disposal of the proceedings – No explanation for delay – Whether primary judge erred in dismissing applications LEGISLATION CITED: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Local Government Act 1993
National Parks and Wildlife Act 1974
Supreme Court Rules 1970
Threatened Species Conservation Act 1995
Uniform Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 168 LGERA 43
Bi v Mourad [2010] NSWCA 17
Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 50 NSWLR 312
Cranky Rock Road v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365
Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388; (2006) 69 NSWLR 156
Helman v Byron…
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Details
- Case
- [2010] NSWCA 36
- Decision Date
CaseChat Overview and Summary
The appeal concerned a judicial review of determinations made by the Minister for Local Government to increase a council's general income. The appellant, Sharples, argued that the Minister's power to make such determinations was contingent on an application from the council that complied with guidelines issued by the Director-General. These guidelines stipulated minimum requirements for applications, including evidence of community support and details of community consultation. The appellant contended that these requirements were not met. The matter was heard by Beazley, Tobias, and McColl JJA in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the Minister's determinations were invalid due to a failure to take into account relevant considerations, specifically the lack of community support and consultation as mandated by the guidelines. Additionally, the court considered whether the primary judge erred in dismissing the appellant's applications to amend points of claim and read an affidavit, and whether the primary judge erred in assessing costs differentially.
The Court of Appeal reasoned that the Minister's power to increase a council's general income was indeed circumscribed by the requirement that the council's application adhere to the Director-General's guidelines. The court found that the guidelines, which specified the need for evidence of community support and consultation, were relevant considerations that the Minister was bound to take into account. The court also considered the interlocutory decisions regarding the amendment of pleadings and the admission of evidence, finding no error in the primary judge's dismissal of these applications, particularly given the prejudice to the respondents and the lack of explanation for the delays.
The Court of Appeal granted leave to appeal in respect of certain grounds concerning the validity of the Minister's determinations but dismissed the appeals against the interlocutory decisions. The appellant was ordered to pay one half of the third respondent's costs of the appeal.
The primary legal issues before the Court of Appeal were whether the Minister's determinations were invalid due to a failure to take into account relevant considerations, specifically the lack of community support and consultation as mandated by the guidelines. Additionally, the court considered whether the primary judge erred in dismissing the appellant's applications to amend points of claim and read an affidavit, and whether the primary judge erred in assessing costs differentially.
The Court of Appeal reasoned that the Minister's power to increase a council's general income was indeed circumscribed by the requirement that the council's application adhere to the Director-General's guidelines. The court found that the guidelines, which specified the need for evidence of community support and consultation, were relevant considerations that the Minister was bound to take into account. The court also considered the interlocutory decisions regarding the amendment of pleadings and the admission of evidence, finding no error in the primary judge's dismissal of these applications, particularly given the prejudice to the respondents and the lack of explanation for the delays.
The Court of Appeal granted leave to appeal in respect of certain grounds concerning the validity of the Minister's determinations but dismissed the appeals against the interlocutory decisions. The appellant was ordered to pay one half of the third respondent's costs of the appeal.
Orders
Orders of the court
(a) Grant leave to appeal in respect of Grounds 1 and 2 of the appellant’s Amended Notice of Appeal filed on 18 May 2009;
(b) Dismiss the appellant’s appeals against the interlocutory decisions of Biscoe J made on 7 November 2008 and the orders of his Honour made on 30 December 2008 and 29 April 2009;
(c) The appellant to pay one half of the third respondent’s costs of the appeal.
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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