Keller v Blacktown City Council [2023] NSWLEC 74

Keller v Blacktown City Council [2023] NSWLEC 74

Because the proceedings concerned the appropriate underlying zoning and development potential of the acquired land, and because flood risk and drainage from the same watercourse could affect residential zoning or development potential, the process by which a nearby residential development application progressed from apparent refusal to approval was apparently relevant. That apparent relevance established a legitimate forensic purpose for paragraph 2 of the Notice to Produce, and no other basis for setting it aside was shown.

Jurisdiction
Australia
Judgment Date
10 July 2023
Procedural Posture
Class 3 / Notice of Motion to Set Aside Part of a Notice to Produce
Outcome
Notice of Motion dismissed; production directed; costs ordered for the Applicants.
Legal Topics
['notice to Produce' 'legitimate Forensic Purpose' 'apparent Relevance' 'flooding Risk' 'underlying Zoning of Acquired Land' 'development Application Documents' 'costs']
['practice and Procedure' 'planning and Environment'] ['notice to Produce' 'legitimate Forensic Purpose' 'apparent Relevance' 'flooding Risk' 'underlying Zoning of Acquired Land' 'development Application Documents' 'costs']

Case Brief

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Procedural Posture

Class 3 / Notice of Motion to Set Aside Part of a Notice to Produce

Legal Issues

  1. 1 ['Whether paragraph 2 of the Notice to Produce should be set aside for lack of legitimate forensic purpose.' 'Whether documents from Class 1 proceedings concerning nearby land had apparent relevance to issues about flooding, drainage, zoning and development potential of the acquired land.' "Whether the Council should pay the Applicants' costs of the Notice of Motion."]

Ratio Decidendi

Because the proceedings concerned the appropriate underlying zoning and development potential of the acquired land, and because flood risk and drainage from the same watercourse could affect residential zoning or development potential, the process by which a nearby residential development application progressed from apparent refusal to approval was apparently relevant. That apparent relevance established a legitimate forensic purpose for paragraph 2 of the Notice to Produce, and no other basis for setting it aside was shown.

Court Disposition

Notice of Motion dismissed; production directed; costs ordered for the Applicants.

Orders

  • ['The Notice of Motion is dismissed.' 'The Council is directed to produce the documents referred to in paragraph 2 of the Notice to Produce forthwith.' "The Council is ordered to pay the Applicants' costs of the Notice of Motion."]