Murray v Woollahra Municipal Council [2013] NSWLEC 40

Murray v Woollahra Municipal Council [2013] NSWLEC 40

Because the proper meaning of height under the LEP and the extent of any exceedence were jurisdictional questions for the Court to determine, whatever opinion the Council formed and whatever legal advice informed that opinion could not rationally affect the existence of a fact in issue. The advices therefore did not satisfy r 21.10(1) of the UCPR, and the notice of motion for their production was dismissed.

Jurisdiction
Australia
Judgment Date
28 March 2013
Procedural Posture
Class 4 Proceedings Challenging the Validity of a Development Consent / Notice of Motion Seeking Production of Legal Advices Under a Notice to Produce
Outcome
Applicants' notice of motion dismissed with costs payable to the Council; further directions made by consent.
Legal Topics
['notice to Produce' 'relevance to a Fact in Issue' 'development Consent Validity' 'height Control Under Planning Instrument' 'sepp 1 Objection' 'legal Professional Privilege']
['planning and Environmental Law' 'civil Procedure' 'evidence'] ['notice to Produce' 'relevance to a Fact in Issue' 'development Consent Validity' 'height Control Under Planning Instrument' 'sepp 1 Objection' 'legal Professional Privilege']

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Procedural Posture

Class 4 Proceedings Challenging the Validity of a Development Consent / Notice of Motion Seeking Production of Legal Advices Under a Notice to Produce

Legal Issues

  1. 1 ['Whether the legal advices identified in the notice to produce were relevant to a fact in issue within r 21.10 of the Uniform Civil Procedure Rules 2005.' "Whether the Council's legal advice about the interpretation of height under the Woollahra Local Environmental Plan 1995 could rationally affect the Court's determination of the jurisdictional question of height." "Whether it was necessary to determine the Council's claim for legal professional privilege over the advices."]

Ratio Decidendi

Because the proper meaning of height under the LEP and the extent of any exceedence were jurisdictional questions for the Court to determine, whatever opinion the Council formed and whatever legal advice informed that opinion could not rationally affect the existence of a fact in issue. The advices therefore did not satisfy r 21.10(1) of the UCPR, and the notice of motion for their production was dismissed.

Court Disposition

Applicants' notice of motion dismissed with costs payable to the Council; further directions made by consent.

Orders

  • ["The applicants' notice of motion filed on 12 March 2013 is dismissed." "The applicants are ordered to pay the Council's costs of that notice of motion." 'Costs of the second respondent on the motion are reserved.' 'Vacate the directions hearing listed for 5 April 2013.' "Applicant to answer the Second Respondent's...