Vaisey v Parramatta City Council - [2002] NSWLEC 182

Reported Decision: 124 LGERA 270

Land and Environment Court

of New South Wales

CITATION: Vaisey v Parramatta City Council [2002] NSWLEC 182

PARTIES:
APPLICANT:
Jacqueline Vaisey
RESPONDENT:
Parramatta City Council

FILE NUMBER(S): (4)0022 of 2002

CORAM: Lloyd J

KEY ISSUES: Compulsory Acquisition of Land :- notice requiring responsible authority to acquire - validity of notice - reservation for public purpose over part only of land - development over reserved land and adjoining land - refusal of consent to development on merit grounds - whether responsible authority bound to acquire

LEGISLATION CITED:

CASES CITED: Attorney General v Till (1910) AC 50;
Byron Shire Council v Greenfields Mountain Pty Ltd [1999] NSWCA 461;
Carter v Hyde (1923) 33 CLR 115;
Dickson v Edwards (1910) 10 CLR 243;
Jones v Daniel (1894) 2 Ch 335;
Lewis v Bell (1985) 1 NSWLR 731;
MacDonald v Robins (1954) 90 CLR 515;
Polarizers (Aust.) Pty Ltd v Marrickville Municipal Council (1979) 40 LGRA 18;
Port Stephens Council v Fidler (1997) 94 LGERA 298;
Wilson Bros (Partners) Pty Ltd v South Sydney Council, NSWLEC, Bannon J, 24 August 1992, unreported

DATES OF HEARING: 18/09/2002

DATE OF JUDGMENT:
10/14/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J B Maston (barrister)
SOLICITORS:
Taylor Kelso
RESPONDENT:
Mr P C Tomasetti (barrister)
SOLICITORS:
Storey & Gough

JUDGMENT:

- 12 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(4)0022 of 2002

LloydJ

14 October 2002

JACQUELINE VAISEY

Applicant

PARRAMATTA CITY CONCIL

Respondent

JUDGMENT

Introduction

1. The applicant seeks a declaration that the respondent, Parramatta City Council (“the council”) is required to acquire the land, comprising part of lot 2 in deposited plan 133383 also known as No. 19 Joseph Street, Rydalmere which is within the Open Space 1(a) (Parks and Recreation) reservation under the Parramatta Planning Scheme Ordinance 1979 as it stood at 18 August 2000, pursuant to cl 19 of that Ordinance. The applicant also seeks a mandatory injunction directing the council without delay to take all necessary steps to obtain the approval of the Governor in Council for the acquisition of the land.

2. Clause 19 of the Parramatta Planning Scheme Ordinance (“the Ordinance”) is as follows:

(1) The owner of any land reserved under Division 2 or 3 upon which the erection of any building or the carrying out or alteration or any work of a permanent character on the making or alteration of any permanent excavation is prohibited except for or incidental to a purpose for which the land is so reserved, or the owner of any land so reserved, in respect of which the responsible authority has refused its consent pursuant to clause 11 (2), 14 (2) or 18 may by notice in writing, require the responsible authority to acquire that land.

(2) Upon receipt of a notice referred to in subclause (1) the responsible authority shall acquire the land to which the notice relates.

3. Clause 11 of the Ordinance relevantly provides:

(1) Except as provided in subclause…

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: [2002] NSWLEC 182
Decision Date: 10/14/2002

CaseChat Overview and Summary

Jacqueline Vaisey, the applicant, sought a declaration that Parramatta City Council, the respondent, was required to acquire a specific parcel of land in Rydalmere pursuant to clause 19 of the Parramatta Planning Scheme Ordinance 1979. The applicant also sought a mandatory injunction to compel the council to seek approval from the Governor in Council for the acquisition. The respondent council argued that the notice given by the applicant was invalid, that its refusal of the applicant's development application was not pursuant to clause 11(2) of the Ordinance, and that it had not refused consent to development in respect of "that land" within the meaning of clause 19(1). Lloyd J found that the notice requiring acquisition was not valid as it demanded the acquisition of the whole of the applicant's property, not just the reserved part. The court held that the council's refusal of the development application was pursuant to section 79C of the Environmental Planning and Assessment Act 1979, not clause 11(2) of the Ordinance, and therefore clause 19 did not apply. Finally, the court concluded that the application for consent related to development over both reserved and non-reserved land, so there had been no refusal of consent in respect of "that land" within the meaning of clause 19(1). The application was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders