Viavattene v Tweed Shire Council

The case of *Viavattene v Tweed Shire Council* concerned an application for leave to appeal from a decision of Barr AJ in the Supreme Court of New South Wales. The applicant, Viavattene, had been convicted of offences relating to obstructing an access road bordering his property. The primary judge had set aside convictions for obstruction prior to a realignment of the road but dismissed the appeal against convictions postdating the realignment.

The legal issues before the Court of Appeal were whether there was any appellable error in the primary judge's decision, particularly concerning the admission of evidence from a surveyor and the subsequent orders made. The Court was required to determine if leave to appeal should be granted, and if so, to what extent.

Leeming JA, with whom Tobias AJA agreed, found no basis for appellable error in the primary judge's decision to admit the surveyor's evidence, despite objections regarding consent to access and late service, as the judge had exercised his discretion appropriately. However, the Court identified an error in the primary judge's order to remit the matter to the Local Court for redetermination after setting aside certain convictions. The Court held that the convictions, fines, and costs orders should have simply been set aside without remittal.

The Court made orders extending the time for the application for leave to appeal and granted leave to the Attorney General to be heard as amicus curiae. Leave to appeal was granted in part, specifically concerning the remittal order, with the Court proposing to set aside that part of the primary judge's order. The Council was directed to consent to these orders, failing which the appeal would be listed for directions. Otherwise, leave to appeal was refused, with no order as to costs for the application for leave.