Frank CALABRO PTY LIMITED v Dennis William and Kim Deidre MAAKA [1999] NSWCA 132

Frank CALABRO PTY LIMITED v Dennis William and Kim Deidre MAAKA [1999] NSWCA 132

Bignold J erred in characterising the proceedings as entirely founded on s 315 of the Local Government Act 1919 (NSW). The appellant's claim was that the respondents were carrying out building works without approval in breach of the Local Government Act 1993 (NSW), and the proceedings were brought under s 674 of that Act. That claim fell within the Land and Environment Court's jurisdiction under s 20(1)(d) of the Land and Environment Court Act 1979 (NSW). Determining whether the 1991 approval had lapsed for failure to substantially commence work within 12 months was a necessary factual or ancillary issue within s 16(1A), because it bore on whether any approval was saved by the...

Jurisdiction
Australia
Judgment Date
13 May 1999
Procedural Posture
Appeal From Land and Environment Court Civil Proceedings Brought Under S 674 of the Local Government Act 1993 (nsw) / Appeal Against Dismissal for Want of Jurisdiction
Outcome
Appeal allowed; dismissal for want of jurisdiction set aside; matter remitted to the Land and Environment Court for a new trial.
Legal Topics
['building Approval Lapse' 'substantial Commencement of Building Works' 'transitional Provisions for Approvals' 'proceedings to Restrain Breach of the Local Government Act 1993 (nsw)' 'ancillary Jurisdiction']
['local Government Law' 'planning and Development Law' 'land and Environment Court Jurisdiction' 'civil Procedure'] ['building Approval Lapse' 'substantial Commencement of Building Works' 'transitional Provisions for Approvals' 'proceedings to Restrain Breach of the Local Government Act 1993 (nsw)' 'ancillary Jurisdiction']

Case Brief

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Procedural Posture

Appeal From Land and Environment Court Civil Proceedings Brought Under S 674 of the Local Government Act 1993 (nsw) / Appeal Against Dismissal for Want of Jurisdiction

Legal Issues

  1. 1 ['Whether the Land and Environment Court had jurisdiction to determine proceedings seeking to restrain alleged building works without approval under the Local Government Act 1993 (NSW).' 'Whether the proceedings were entirely founded on s 315 of the Local Government Act 1919 (NSW) or were proceedings under s 674 of the Local Government Act 1993 (NSW).' 'Whether the court could determine whether the 1991 building approval had lapsed for failure to substantially commence works within 12 months as an ancillary or factual matter.' 'Whether an approval granted under the Local Government Act 1919 (NSW) continued in force under cl 14 of Schedule 7 of the Savings and Transitional Provisions to the Local Government Act 1993 (NSW).']

Ratio Decidendi

Bignold J erred in characterising the proceedings as entirely founded on s 315 of the Local Government Act 1919 (NSW). The appellant's claim was that the respondents were carrying out building works without approval in breach of the Local Government Act 1993 (NSW), and the proceedings were brought under s 674 of that Act. That claim fell within the Land and Environment Court's jurisdiction under s 20(1)(d) of the Land and Environment Court Act 1979 (NSW). Determining whether the 1991 approval had lapsed for failure to substantially commence work within 12 months was a necessary factual or ancillary issue within s 16(1A), because it bore on whether any approval was saved by the...

Court Disposition

Appeal allowed; dismissal for want of jurisdiction set aside; matter remitted to the Land and Environment Court for a new trial.

Orders

  • ['Appeal allowed.' 'The order dismissing the proceedings as beyond jurisdiction be set aside.' 'The matter be remitted to the Land and Environment Court for a new trial.' "The respondent pay the appellant's costs of the appeal but receive a certificate under the Suitors' Fund Act if otherwise entitled." "The costs...