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 APPLICANT: Walker PARTIES : 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

APPLICANT: Mr John Boswell (Agent) SOLICITORS N/A

LEGAL REPRESENTATIVES: 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)