Scharer v State of New South Wales [2001] NSWCA 360

Scharer v State of New South Wales [2001] NSWCA 360

An easement deemed to be granted under s 153(3) of the National Parks and Wildlife Act is a right conferred by a planning or environmental law and thus within the exclusive jurisdiction of the Land and Environment Court under s 20(2)(a) and s 71 of the LEC Act. Claims for damages ancillary to such a right can also be heard in that Court. The Supreme Court has no discretion to retain the case where exclusive jurisdiction rests with the Land and Environment Court.

Parties
Claimant: Geoffrey Francis Scharer; Opponent: State of New South Wales
Jurisdiction
Australia
Judgment Date
10 October 2001
Procedural Posture
Appeal / Judgment on Appeal From a Transfer Order (supreme Court Equity Division to Land and Environment Court)
Outcome
Appeal dismissed with costs. Orders 1 and 3 of Santow J confirmed. Leave granted in order 2 of Santow J set aside.
Legal Topics
Easements, Rights of Way, Jurisdiction, Judicial Review, Declaratory Relief, Injunctions, Damages, Enforcement of Rights, Transfer of Proceedings
Environmental Law Property Law Procedure Remedies Easements Rights of Way Jurisdiction Judicial Review +5 more

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Parties

Geoffrey Francis Scharer

Claimant

State of New South Wales

Opponent

Procedural Posture

Appeal / Judgment on Appeal From a Transfer Order (supreme Court Equity Division to Land and Environment Court)

Legal Issues

  1. 1 Whether the right of way (easement) claimed by the appellant is within the exclusive jurisdiction of the Land and Environment Court under the Land and Environment Court Act 1979;
  2. 2 Whether an easement or right of way deemed to be granted under s 153(3) of the National Parks and Wildlife Act 1974 is a right 'conferred or imposed by a planning or environmental law';
  3. 3 Whether the Land and Environment Court has jurisdiction to award damages in this context;

Ratio Decidendi

An easement deemed to be granted under s 153(3) of the National Parks and Wildlife Act is a right conferred by a planning or environmental law and thus within the exclusive jurisdiction of the Land and Environment Court under s 20(2)(a) and s 71 of the LEC Act. Claims for damages ancillary to such a right can also be heard in that Court. The Supreme Court has no discretion to retain the case where exclusive jurisdiction rests with the Land and Environment Court.

Court Disposition

Appeal dismissed with costs. Orders 1 and 3 of Santow J confirmed. Leave granted in order 2 of Santow J set aside.

Orders

  • Appeal dismissed with costs;
  • Orders 1 and 3 of Santow J confirmed;