HAMILL v BYRON SHIRE COUNCIL and ANOR [1998] NSWCA 101

HAMILL v BYRON SHIRE COUNCIL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL and BEAZLEY JJA 15 October 1998

[1998] NSWCA 101 Mason P

On application to receive fresh evidence (see p10 trans)

This is an appeal as of right from class 4 proceedings in the Land and Environment Court. The proceedings were before Bignold J and they involved a challenge by Mr Hamill, the present appellant, to the validity of a. development application. I emphasise that, because these were not proceedings in relation to the merits of the particular development approval that had been given by the Council.

The proceedings were based upon a document called Final Points of Claim which Mr Hamill had been directed to file prior to the hearing of the proceedings below. The purpose of such a document is to enable the Court and the respondent to the proceedings to understand what matters are going to be challenged and raised in connection with the class 4 proceedings.

We have that document and it is at p2 and p3 of the appeal book. Mr Hamill has helpfully indicated to the Court that he does not press ground 3 but he wishes to maintain in the appeal grounds 1, 2 and 4 as set out in those final points of claim. The Court of Appeal in dealing with an appeal is constrained by the grounds that are raised in the notice of appeal. Mr Hamill has recognised this because he has actually sought to amend those grounds in one respect.

The grounds that have been filed - and they are at p91 of the red book - include grounds seeking to reagitate matters that were advanced before Bignold J and it is certainly open to Mr Hamill to do that and we have to hear him on his complaint as to the way the judge dealt with those matters. They also include matters which were not part of the proceedings below. These grounds are grounds 1, 3, 5 and 6.