Anderson v Ballina Shire Council and Anor [2005] NSWLEC 602

Anderson v Ballina Shire Council and Anor [2005] NSWLEC 602

The applicants conceded that DEC did not give concurrence to the Council's determination, removing the pleaded basis for the mandatory considerations claim. In light of that concession and the evidence that the Jali Local Aboriginal Land Council and Mr Troy Anderson had been consulted, there was no sustainable basis for the pleaded denial of natural justice claim against DEC. The proceedings against DEC disclosed no reasonable cause of action and were dismissed.

Jurisdiction
Australia
Judgment Date
13 October 2005
Procedural Posture
Amended Class 4 Application / Notice of Motion by the Second Respondent to Strike Out or Dismiss the Proceedings Against the Second Respondent
Outcome
Proceedings against the second respondent dismissed; costs reserved.
Legal Topics
['strike Out Application' 'reasonable Cause of Action' 'procedural Fairness' 'concurrence Under the Environmental Planning and Assessment Act 1979' 'costs Reserved']
['practice and Procedure' 'environmental Planning and Assessment' 'administrative Law'] ['strike Out Application' 'reasonable Cause of Action' 'procedural Fairness' 'concurrence Under the Environmental Planning and Assessment Act 1979' 'costs Reserved']

Case Brief

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Procedural Posture

Amended Class 4 Application / Notice of Motion by the Second Respondent to Strike Out or Dismiss the Proceedings Against the Second Respondent

Legal Issues

  1. 1 ['Whether the proceedings against the second respondent should be struck out or dismissed because no reasonable cause of action was disclosed.' 'Whether the applicants had any sustainable claim that the second respondent denied procedural fairness by failing to ensure consultation with the Anderson family.' 'Whether papers should be referred to The Law Society of New South Wales in relation to alleged infringement of s 15(1) of the Legal Profession Act 2004.' 'Whether costs, including indemnity costs, should be ordered on the motion.']

Ratio Decidendi

The applicants conceded that DEC did not give concurrence to the Council's determination, removing the pleaded basis for the mandatory considerations claim. In light of that concession and the evidence that the Jali Local Aboriginal Land Council and Mr Troy Anderson had been consulted, there was no sustainable basis for the pleaded denial of natural justice claim against DEC. The proceedings against DEC disclosed no reasonable cause of action and were dismissed.

Court Disposition

Proceedings against the second respondent dismissed; costs reserved.

Orders

  • ['The proceedings against the second respondent be dismissed.' 'Costs reserved.' 'The proceedings to be re-listed within 21 days if any application for costs is to be pressed.' 'The exhibits be returned.']