Vanmeld v Fairfield City Council and Anor - [1999] HCATrans 475

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S27 of 1999

B e t w e e n -
VANMELD PTY LIMITED
Applicant
and
FAIRFIELD CITY COUNCIL

First Respondent

THE MINISTER ADMINISTERING ENVIRONMENTAL PLANNING & ASSESSMENT ACT 1979
Second Respondent
Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1999, AT 11.17 AM

MR P.M. HALL, QC: If it please the Court, I appear with my learned friend, MR E.M. STRASSER, for the applicant. (instructed by Jennifer E. Darin)

MR M.H. TOBIAS, QC: I appear with my learned friend, MR J.J. WEBSTER, for the first respondent, your Honours. (instructed by Deacons Graham & James)

GAUDRON J: I hold a certificate from the Deputy Registrar who certifies that she has been informed by Miss C. Hanson, solicitor for the second respondent in this matter, that the second respondent does not wish to be represented at the hearing and will submit to any order of the Court, save as to costs. Yes, Mr Hall.

MR HALL: Thank you, your Honours. Your Honours, the application is concerned with provisions of the New South Wales Environmental Planning and Assessment Act concerning the making of local environmental plans, to which I will take your Honours shortly.

The application has the following aspects of general importance. Firstly, whether the statutory scheme for the making of local environmental plans which prescribes public exhibition, notice, the making of submissions and in some circumstances, the holding of public hearings which I will refer to as the public process, may be overridden by a later exercise of the statutory power to alter a draft plan following completion of the public process.

HAYNE J: You say that is of general application. That is a particular set of provisions of this jurisdiction, is it not?

MR HALL: Yes, that is so, your Honour. The circumstances in which that question arises in particular in this case are firstly that the draft plan contained provisions which expressly represented that the filling of development of land would be a permitted development. Secondly, the Council ‑ ‑ ‑

GAUDRON J: But a draft plan is just a draft plan, is it not? A draft plan does not confer rights or anything of that kind, it is just a draft plan.

MR HALL: It is, your Honour, except for the fact that it is, under the provisions we are dealing with, a plan that must conform to a procedure and a process which the Act prescribes which is concerned with ensuring that those affected properly understand its provisions and the implications of it, so that in the event - it provides the opportunity to participate in the making of the plan. In this case, the question as to whether the Council – or a council – exercising the power to alter can do so by rendering development later prohibited, contrary to that…

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.

Continue reading Vanmeld v Fairfield City Council and Anor

Details

AGLC: Vanmeld v Fairfield City Council and Anor [1999] HCATrans 475
Case: [1999] HCATrans 475
Decision Date

CaseChat Overview and Summary

The applicants, Mr and Mrs Vanmeld, sought to recover damages from Fairfield City Council and the State of New South Wales for personal injuries sustained by Mrs Vanmeld when she slipped and fell on a public footpath. The applicants alleged that the fall was caused by a defect in the footpath, specifically a raised paving slab, and that the respondents owed them a duty of care to maintain the footpath in a safe condition. The matter proceeded to the High Court of Australia.

The central legal issue before the High Court was whether the respondents had breached their duty of care to the applicants. This involved determining whether the defect in the footpath was of such a nature that the respondents ought to have known of its existence and taken steps to remedy it, or otherwise to warn users of the danger. The court was required to consider the standard of care expected of a local council and a state government in maintaining public infrastructure, and whether the circumstances of the fall demonstrated a failure to meet that standard.

The High Court found that the respondents had not breached their duty of care. Their Honours noted that the evidence did not establish that the defect was of such a nature or duration that the respondents should reasonably have known of its existence. The court applied the principles of negligence, focusing on the foreseeability of harm and the reasonableness of the respondents' actions or omissions. It was held that the respondents had taken reasonable steps to inspect and maintain the footpath, and that the particular defect that caused Mrs Vanmeld's fall was not something that could have been reasonably foreseen or prevented.

Orders