Walker v Kempsey Shire Council

[2001] NSWLEC 235

Land and Environment Court

of New South Wales

CITATION:	Walker v Kempsey Shire Council [2001] NSWLEC 235
PARTIES:	APPLICANT: Walker RESPONDENT: Kempsey Shire Council
FILE NUMBER(S):	10721 of 1999
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- Determination of questions raised during course of hearing by a Commissioner-reference to Judge for determination.
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	11 September 2001
EX TEMPORE JUDGMENT DATE :	09/11/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr John Boswell (Agent) SOLICITORS N/A RESPONDENT: Mr G Underwood, Barrister SOLICITORS Howard Sheridan Cooney Harvey

JUDGMENT:

IN THE LAND AND

Matter No. 10721 of 1999

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

11 September 2001

ELLIS WALKER

Applicant

v

KEMPSEY SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J:

1. In the course of the hearing of an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97, Commissioner Brown has been requested by the parties to refer to a Judge for determination, a number of questions of law that have been raised by the parties.

2. The questions of law are as follows:
1. In the circumstances disclosed in Annexure A to the affidavit of E R Walker dated 29 August 2001, should Howard Sheridan Cooney Harvey be disqualified from acting for the Respondent in these proceedings.
2. Whether subpoenas addressed to Councillor J A C Hayes and Councillor J H Bowell should be set aside. (see attachments B1, B2).
3. Whether subpoena addressed to B W Casseldon should be set aside (see attachment C).
4. Is the DA lodged by M R E Walker, dated 29 June 1996, without owners consent in breach of cl 73(6) of the regulations to the Environmental Planning and Assessment Act 1979 if the Applicant fails to consult with the Director-General. The consent of one owner, Mr Grenning, given on 10 September 2001 and the Applicants wife transferring to the Applicant her ¼ interest in lot 1322 Belmore River Road pursuant to family law orders dated 15 November 1999 and as of today no owners authority from Mr Foo (Attachment D)

3. In the light of what the Applicant has said about his willingness and readiness to proceed with this case at Kempsey, I am satisfied that the case should proceed as listed.

4. The questions of law that have been propounded are answered as follows:

Question 1-The answer to this question is -No, the Council’s legal representatives should not be disqualified from acting in these proceedings. The fact that the Solicitor for the Council also acted for the Applicant some years ago also in relation to a matter raised by the present appeal does not create any situation of conflict for the Solicitor, or prejudice to the Applicant, by virtue of the Council’s legal representatives continuing to act in the present proceedings.

Questions 2 and 3 -The answer to these questions is -No. The subpoenas are addressed to the Councillors of the Kempsey Council. They are competent and compellable witness and their testimony has prima facie relevance to the issue sought to be raised by the Applicant.

Question 4 - The land owners’ consents in writing must be available to the Court prior to the determination in the appeal. In the event of the requisite consents in writing are not tendered in evidence the appeal must, as a matter of law, be dismissed for non compliance with the Environmental Planning and Assessment Act s 77(1) as in force in relation to the subject development application which was lodged back in 1996. The Applicant is required to tender the requisite consents by the end of the hearing or within 14 days thereafter. Concerning the question of non-compliance with cl 73(6) of the Regulation—I answer that question by holding that any non-compliance with cl 73(6) of the Regulation (or more precisely with cl 55(7) of the 1994 Regulation, which is the relevant reference in this case where the development application was lodged in 1996) does not invalidate the application or the appeal.

5. The question of costs is reserved