JOHNSON v LAKE MACQUARIE CITY COUNCIL [1991] NSWCA 160

JOHNSON v LAKE MACQUARIE CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

MAHONEY JA, MEAGHER JA and HopE AJA 14 October 1991

[1991] NSWCA 160

Mahoney JA. This is an application seeking, as I understand it, an order extending time for seeking leave to appeal and an order seeking leave to appeal with respect to orders made by the Chief Judge of the Land and Environment Court.

This is an application which in my opinion should fail. Ordinarily it is the practice of this Court not to give reasons granting or refusing leave to appeal in matters of this kind but in the special circumstances of the case it is in my opinion appropriate that certain reasons be given.

It would appear that the matters involved are two class 1 proceedings, being proceedings in respect of a marina development, and a class 4 proceeding. The learned judge had given directions in relation to the formulation of issues. On 26 July 1991 when the final orders were made the judge said this:

It remains, however, to note that in respect of the class one proceedings it is not possible for me at least to identify the issues with that degree of clarity or coherence that I think must be there in order for the defendants in each case to properly prepare their case. As I have said this is because the material put before the Court by Mr Johnson simply does not fulfil the direction given to him by the Court over the last few months.

His Honour then dealt with some of the provisions in the Environmental Planning and Assessment Act and said:

I mention these matters because I think it must be fairly clear that although I must have regard to the doctrine that ordinary fairness means that people should be given the opportunity to prepare and present cases in the Land and Environment Court arising under Section 123 and Section 98, commonsense also dictates in my opinion that those people whose interests are challenged and who have consents which are impugned, or have made plans which are under threat, have the opportunity to respond to those allegations and that their opportunity to so respond depends upon the person bringing the challenge abiding by the directions given by the Court that the issues be prepared and established for determination.