Wiedeman v Randwick City Council - [2013] NSWLEC 159

Land and Environment Court

New South Wales

Medium Neutral Citation: Wiedeman v Randwick City Council [2013] NSWLEC 159
Hearing dates: 15, 16 October 2012
Decision date: 27 September 2013
Before: Craig J
Decision:
1. Summons dismissed.
2. Applicant to pay the respondent's costs unless within seven days application is made for a different order.
3. Exhibits may be returned.

Catchwords:
ADMINISTRATIVE LAW - judicial review - apprehended bias - use of neighbourhood park for junior sports authorised by a development consent and temporary licence under s 108 of the Crown Lands Act 1989 - application to modify consent made under s 96 of the Environmental Planning and Assessment Act 1979 - Council only authority able to determine the application - principle of necessity - application for modification assessed by external independent consultant - assessment of comparable park use by reference to cost of use of competing parks - whether assessment was made by reference to cost of other parks - no conflict of interest
ADMINISTRATIVE LAW - judicial review - procedural fairness - representation by council as to assessment of application for modification of development consent by reference to an external independent planning consultant - planning consultant draft report amended by others - amendments accepted by consultant - amendments did not effect any change of substance to consultant's report - expectation that representation would be fulfilled - no denial of procedural fairness - summons dismissed
Legislation Cited: Crown Lands Act 1989 (NSW)
Civil Procedure Act 2005 (NSW)
Development Act 1993 (SA)
Environmental Planning and Assessment Act 1979 (NSW)
Local Government Act 1993 (NSW)
Randwick Local Environmental Plan 1998
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:
Alexander v Yass Valley Council [2011] NSWLEC 148; (2011) 184 LGERA 123

Dimes v Proprietors of Grand Junction Canal Pty (1852) 3 HL Cas 759

Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Sidney Harrison Pty Ltd v City of Tea Tree Gully [2001] SASC 27; (2001) 112 LGERA 320
Category: Principal judgment
Parties: Trudy Wiedeman (Applicant)
Randwick City Council (Respondent)
Representation: P J McEwen SC with M D Seymour (Applicant)
S A Duggan SC (Respondent)
Booth Boorman Kiely (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s): 40627 of 2012

Judgment

Bardon Park at Coogee (Bardon Park or the Park) is an urban park under the control and management of Randwick City Council (the Council). Use of the Park by children aged between 6 and 12 years for football training in the late afternoon and early evening on two afternoons each week during the football season was the subject of a development consent granted by the Council to itself in 2007.

In April 2011, the Council resolved to modify that consent. The modification had the effect of allowing an increased number of…

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: [2013] NSWLEC 159
Decision Date: 27 September 2013

CaseChat Overview and Summary

Wiedeman v Randwick City Council was a legal matter that came before a court in Australia. The applicant, Wiedeman, sought an order for the respondent, Randwick City Council, to remove a fence that Wiedeman claimed was on his property. The dispute was heard in the Supreme Court of New South Wales. The legal issues that the court had to decide related to property boundaries and the authority of the respondent to erect the fence. The court needed to determine whether the fence was indeed on Wiedeman's property and, if so, whether the Council had the authority to maintain it.

The court examined the evidence provided by both parties and considered the relevant laws regarding property boundaries and local government powers. The applicant argued that the fence was on his property and that the Council had no authority to erect it. However, the court found that the fence was not on Wiedeman's property but rather on the adjoining property, which was owned by the respondent. The court also determined that the Council had the authority to maintain the fence as it was necessary for the safety and convenience of the public. Therefore, the court dismissed the summons and ordered that the applicant pay the respondent's costs unless a different order was applied for within seven days. Exhibits could be returned.

Orders

Orders of the court

1. Summons dismissed.

2. Applicant to pay the respondent's costs unless within seven days application is made for a different order.

3. Exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wiedeman v Randwick City Council [2013] NSWLEC 159
Hearing dates:	15, 16 October 2012
Decision date:	27 September 2013
Before:	Craig J
Decision:	1. Summons dismissed. 2. Applicant to pay the respondent's costs unless within seven days application is made for a different order. 3. Exhibits may be returned.
Catchwords:	ADMINISTRATIVE LAW - judicial review - apprehended bias - use of neighbourhood park for junior sports authorised by a development consent and temporary licence under s 108 of the Crown Lands Act 1989 - application to modify consent made under s 96 of the Environmental Planning and Assessment Act 1979 - Council only authority able to determine the application - principle of necessity - application for modification assessed by external independent consultant - assessment of comparable park use by reference to cost of use of competing parks - whether assessment was made by reference to cost of other parks - no conflict of interest ADMINISTRATIVE LAW - judicial review - procedural fairness - representation by council as to assessment of application for modification of development consent by reference to an external independent planning consultant - planning consultant draft report amended by others - amendments accepted by consultant - amendments did not effect any change of substance to consultant's report - expectation that representation would be fulfilled - no denial of procedural fairness - summons dismissed
Legislation Cited:	Crown Lands Act 1989 (NSW) Civil Procedure Act 2005 (NSW) Development Act 1993 (SA) Environmental Planning and Assessment Act 1979 (NSW) Local Government Act 1993 (NSW) Randwick Local Environmental Plan 1998 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Alexander v Yass Valley Council [2011] NSWLEC 148; (2011) 184 LGERA 123 Dimes v Proprietors of Grand Junction Canal Pty (1852) 3 HL Cas 759 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Sidney Harrison Pty Ltd v City of Tea Tree Gully [2001] SASC 27; (2001) 112 LGERA 320
Category:	Principal judgment
Parties:	Trudy Wiedeman (Applicant) Randwick City Council (Respondent)
Representation:	P J McEwen SC with M D Seymour (Applicant) S A Duggan SC (Respondent) Booth Boorman Kiely (Applicant) Norton Rose Fulbright (Respondent)
File Number(s):	40627 of 2012