Willoughby City Council v Bowen - [2000] NSWLEC 198

Reported Decision: 108 LGERA 149

Land and Environment Court

of New South Wales

CITATION: Willoughby City Council v Bowen [2000] NSWLEC 198

PARTIES:
APPLICANT:
Willoughby City Council
RESPONDENT:
Bowen

FILE NUMBER(S): 40079 of 2000

CORAM: Bignold J

KEY ISSUES: Practice & Procedure :- summary dismissal of permanent stay of class 4 proceedings raising a question of law relevant to pending class 1 proceedings.

LEGISLATION CITED:

CASES CITED: Bowen v Willoughby City Council (2000) 108 LGERA 149· Gemsted Pty Ltd v Gosford City Council (1993) 78LGERA 395;
Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95

DATES OF HEARING: 23/06/00

DATE OF JUDGMENT:
08/31/2000

LEGAL REPRESENTATIVES:
APPLICANT:
Mr B Preston SC
SOLICITORS
Malleson Stephen Jacques
RESPONDENT:
Mr P Tomasetti, Barrister
SOLICITORS
Corrs Chambers Westgarth

JUDGMENT:

IN THE LAND AND Matter No . 40079 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 31 August 2000

WILLOUGHBY CITY COUNCIL

Applicant

BOWEN

Respondent

JUDGMENT

Bignold J:

1. By Notice of Motion filed 1 June 2000, the Respondent seeks an order that class 4 proceedings brought against him by the Applicant (the Council) be struck out or permanently stayed.

2. The class 4 proceedings which were commenced in this Court on 22 May 2000 claimed the following relief:
1. A declaration that the erection of dwelling houses on proposed lots 2, 3 and 4 in the plan of subdivision proposed by development application number 1999/1630 made in respect of the property known as 70-72 Sugarloaf Crescent, Castlecrag being lots 301 to 305 in Deposited Plan 13613 is prohibited.
2. That the Respondent pay the Applicant’s costs.

3. The claimed declaration refers to two matters that vitally and immediately concern the Respondent—
(i.) the development application (1999/1630) made under the Environmental Planning and Assessment Act 1979 (the EP&A Act) by the Applicant and his wife to the Council on 25 November 1999 for the re-subdivision of land known as Nos 70-72 Sugarloaf Cres, Castlecrag being lots 301 to 305 inclusive, Deposited Plan 13613 (the subject property); the demolition of an existing garage and the construction of an access driveway (the development application); and
(ii.) the subject property which is co-owned by the Applicant and his wife.

4. Additionally the claimed declaration refers to another matter that may at some future time vitally affect the Respondent, namely the prospective fact that the erection of a dwelling-house on three of the five lots proposed to be created by the development application is prohibited.

5. The formulation in the Class 4 application of this additional matter immediately calls for some clarification which I think is readily available, namely (i) the source of the alleged “prohibition” on the erection of a dwelling-house on each of the three proposed lots is the Willoughby Local Environmental Plan 1995 (the LEP) and the EP&A Act s 76A and s76B; and (ii) the legal status of the proposed lots, namely the same identified lots not as proposed lots, but as created lots if development…

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: [2000] NSWLEC 198
Decision Date: 08/31/2000

CaseChat Overview and Summary

The case of Willoughby City Council v Bowen involves a dispute between the Willoughby City Council and Bowen. The Council sought to have class 4 proceedings against Bowen struck out or permanently stayed. The class 4 proceedings were commenced to seek a declaration that the erection of dwelling houses on certain lots in a proposed subdivision was prohibited. The Council sought this declaration based on planning laws and local environmental plan provisions.

The legal issues before the court were whether the class 4 proceedings should be dismissed or stayed, and if so, whether the Council should pay Bowen's costs. The court found that the class 4 proceedings were not an appropriate vehicle for raising the legal issues, which could and should have been raised in pending class 1 proceedings. The class 1 proceedings involved an appeal by the Council against the refusal of a development application.

The court held that the class 4 proceedings were hypothetical and an abuse of process, as they depended on future contingencies that may never occur. The court also found that it would be unfair to expose Bowen to additional litigation and legal costs. Therefore, the court permanently stayed the class 4 proceedings and ordered the Council to pay Bowen's costs.

The court held that the pending class 1 proceedings provided a more appropriate and fairer basis for raising the legal issues, as they were directly related to the same development application. The court gave the Council leave to raise the legal issues in the class 1 proceedings.

Orders