Helm No. 18 Pty Ltd v North Sydney Council (No 2) [2022] NSWLEC 103

Helm No. 18 Pty Ltd v North Sydney Council (No 2) [2022] NSWLEC 103

A stay should be granted as there is a serious question to be tried on the appeal, the balance of convenience favours maintaining the status quo to prevent demolition before the appeal is determined, and the early listing of the appeal diminishes the significance of Council not providing an undertaking as to damages.

Parties
Respondent on Notice of Motion: Helm No. 18 Pty Ltd; Applicant on Notice of Motion: North Sydney Council
Jurisdiction
Australia
Judgment Date
12 August 2022
Procedural Posture
Notice of Motion for Stay Pending Appeal (class 1, Land and Environment Court) / Interlocutory Application (stay Pending Determination of S 56 a Appeal)
Outcome
Stay of execution granted pending determination of s 56A appeal.
Legal Topics
Stay of Execution, Heritage Listing/interim Heritage Orders, Interlocutory Relief, Appeals on Questions of Law
Administrative Law Planning and Environment Law Heritage Law Stay of Execution Heritage Listing/interim Heritage Orders Interlocutory Relief Appeals on Questions of Law

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Parties

Helm No. 18 Pty Ltd

Respondent on Notice of Motion

North Sydney Council

Applicant on Notice of Motion

Procedural Posture

Notice of Motion for Stay Pending Appeal (class 1, Land and Environment Court) / Interlocutory Application (stay Pending Determination of S 56 a Appeal)

Legal Issues

  1. 1 Whether a stay of execution of the Acting Commissioner's judgment should be granted pending an appeal under s 56A of the Land and Environment Court Act 1979 (NSW)
  2. 2 Whether there is a serious question to be tried and the balance of convenience favours a stay
  3. 3 Whether lack of an undertaking as to damages precludes grant of a stay

Ratio Decidendi

A stay should be granted as there is a serious question to be tried on the appeal, the balance of convenience favours maintaining the status quo to prevent demolition before the appeal is determined, and the early listing of the appeal diminishes the significance of Council not providing an undertaking as to damages.

Court Disposition

Stay of execution granted pending determination of s 56A appeal.

Orders

  • The operation of the decision and orders made by Acting Commissioner Sheridan on 29 July 2022 are suspended until the appeal under s 56A of the Land and Environment Court Act 1979 is determined.
  • Hearing of the s 56A appeal is to proceed on 22 August 2022.