New South Wales Court of Appeal CITATION: Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWCA 309 HEARING DATE(S): 16 November 2010 JUDGMENT OF: Allsop P at [1], [11]; Macfarlan JA at [2] EX TEMPORE JUDGMENT DATE: 16 November 2010 DECISION: The application for leave to appeal is dismissed with costs. [Note: The Uniform Civil Procedure Rules provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16]. CATCHWORDS: PRACTICE - leave to appeal refused - no question of principle involved LEGISLATION CITED: Environmental Planning and Assessment Regulation Land and Environment Court Act 1979 CATEGORY: Principal judgment Carolan v AMF Bowling Pty Ltd (t/as Bennett's Green Bowl) [1995] NSWCA 69 CASES CITED: Fink v Beaven [2010] NSWCA 92 In the Matter of Luck [2003] HCA 70; (2003) 78 ALJR 177 Tampion v Anderson (1974) 48 ALJR 11 PARTIES: Those Best Placed Pty Ltd (Applicant) Tweed Shire Council (Respondent) FILE NUMBER(S): CA 2010/240352 COUNSEL: A Crowther (Applicant's Agent) J A Ayling SC (Respondent) SOLICITORS: A Crowther (Applicant's Agent) HWL Ebsworth Lawyers (Respondent) LOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): 2009/40719 LOWER COURT JUDICIAL OFFICER: Biscoe J LOWER COURT DATE OF DECISION: 27 May 2010 LOWER COURT MEDIUM NEUTRAL CITATION: Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWLEC 83 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/240352 ALLSOP P MACFARLAN JA 16 NOVEMBER 2010 THOSE BEST PLACED PTY LTD v TWEED SHIRE COUNCIL Judgment 1 ALLSOP P: I will ask Justice Macfarlan to deliver the first judgment. 2 MACFARLAN JA: This is an application for leave to appeal against a decision of 27 May 2010 made by Biscoe J of the New South Wales Land and Environment Court ([2010] NSWLEC 83). His Honour ordered that Class 4 proceedings commenced by Those Best Placed Pty Ltd (the applicant in this Court) and Ms Sandra Schultz be dismissed with costs. 3 The applicant seeks leave to appeal to this Court pursuant to s 58(1) Land and Environment Court Act 1979. It needs leave to appeal under that section as the primary judge's decision was to dismiss the proceedings upon the basis that no reasonable cause of action was disclosed and the decision was therefore interlocutory (Tampion v Anderson (1974) 48 ALJR 11 at 12; In the Matter of Luck [2003] HCA 70; (2003) 78 ALJR 177 at [9]). 4 The applicant did not have legal representation at first instance, nor does it have it on the application for leave to appeal. Mr A Crowther, who is the managing director of the applicant, has conducted the proceedings on its behalf. 5 The primary judge observed that the Points of Claim of the applicant and Ms Schultz were lengthy, as were their Written Submissions. His Honour said that "[t]he Points of Claim are verbose and repetitive, over 100 hundred pages in length and tend to be in the nature of submissions" and that their submissions were "in three volumes and comprise[d] 268 pages" (Judgment [6]). His Honour distilled the material that was before him by summarising the gravamen of the case of the applicant and Ms Schultz as follows: "7 Based upon what Mr Crowther told me at the hearing and what I have otherwise been able to glean, his main grievance can be simply stated. He applied, through his builder, for development consent for a shed with a bathroom that he wished to build on the [subject land]. In order to consider the application, the council required him to produce a report demonstrating that sufficient land area and site conditions would exist to cope with the additional use to which the septic tank might be subject as a result of the increase in the facilities attached to it. He refused to provide a report. He thought that if he provided a report it would lead to a council condition of development consent for an upgrading of the existing septic system at a cost to him and Ms Schultz which he estimated would be up to $20,000. Because he refused to provide the report, the council refused the development application. He says that the council's request and refusal were unlawful and so were other related decisions of the council. He says that if the existing septic system has to be upgraded, the council has to pay for it, except for 1/80,000 th of the cost, being his estimate of the proportion between the cost of that upgrading on the Land and the cost of the provision of such upgrading in the council's whole local government area". 6 In his judgment of some 48 pages, the primary judge then proceeded to deal clearly and carefully with the various arguments that had been put before him by the applicant and Ms Schultz. 7 I have examined the applicant's Written Submissions filed in support of its application for leave to appeal and have considered the matters that have been put to the Court orally by Mr Crowther but have concluded that none of the matters raised warrants a grant of leave to appeal. None of them in my view raises any matter of principle or of general public importance, or raises any clearly arguable issue, much less one that suggests that any obvious injustice has occurred as a result of the decision at first instance. Consistently with the principles expounded in Carolan v AMF Bowling Pty Ltd (t/as Bennett's Green Bowl) [1995] NSWCA 69 and referred to by me in Fink v Beaven [2010] NSWCA 92, the application for leave to appeal should in these circumstances be dismissed with costs. It is not appropriate for me to deal with the detail of the applicant's arguments, save that I would mention one matter as follows. 8 A central element of the applicant's case was that the respondent made what the applicant described as an "illegal requirement" that the applicant lodge with the respondent a report concerning the sewerage conditions at the subject site to enable the respondent to consider the applicant's development application. The primary judge held that a request to this effect made by the respondent was justified by clause 54 of the Environmental Planning and Assessment Regulation which provides inter alia that "[a] consent authority may request the applicant for development consent to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the application" (subclause (1)) (Judgment [93]). 9 The primary judge's view about this was plainly correct and the applicant provided no sensible argument in support of a contrary view. The applicant relied upon clause 54(4) of the Regulation (together with the note to that subclause) but that was not established by the applicant to provide any presently relevant qualification to the generality of the provision to which the primary judge referred. 10 I propose that the application for leave to appeal be dismissed with costs. 11 ALLSOP P: I agree. The orders of the Court are that the application for leave to appeal be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.