HAMILL v BYRON SHIRE COUNCIL and ANOR [1998] NSWCA 101

HAMILL v BYRON SHIRE COUNCIL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL and BEAZLEY JJA 15 October 1998

[1998] NSWCA 101 Mason P

On application to receive fresh evidence (see p10 trans)

This is an appeal as of right from class 4 proceedings in the Land and Environment Court. The proceedings were before Bignold J and they involved a challenge by Mr Hamill, the present appellant, to the validity of a. development application. I emphasise that, because these were not proceedings in relation to the merits of the particular development approval that had been given by the Council.

The proceedings were based upon a document called Final Points of Claim which Mr Hamill had been directed to file prior to the hearing of the proceedings below. The purpose of such a document is to enable the Court and the respondent to the proceedings to understand what matters are going to be challenged and raised in connection with the class 4 proceedings.

We have that document and it is at p2 and p3 of the appeal book. Mr Hamill has helpfully indicated to the Court that he does not press ground 3 but he wishes to maintain in the appeal grounds 1, 2 and 4 as set out in those final points of claim. The Court of Appeal in dealing with an appeal is constrained by the grounds that are raised in the notice of appeal. Mr Hamill has recognised this because he has actually sought to amend those grounds in one respect.

The grounds that have been filed - and they are at p91 of the red book - include grounds seeking to reagitate matters that were advanced before Bignold J and it is certainly open to Mr Hamill to do that and we have to hear him on his complaint as to the way the judge dealt with those matters. They also include matters which were not part of the proceedings below. These grounds are grounds 1, 3, 5 and 6.

Ground | raises a ground of appeal that the development was a sham in that it proposes site usages inconsistent with the general rule in the 1A zone of the Byron Shire LEP. It is linked in part with grounds 5 and 6 which speak of manifestly unreasonable approval and council officers acting in bad faith. These are matters which were not in the points of claim. Had they been, the case almost certainly would have been conducted differently and there would have been evidence led which was not led. In my view, it is not open for these grounds to be maintained on appeal in those circumstances.

Mr Hamill has sought to put before the Court seven documents. Just for the record I will identify them as a statement of Malcolm Walker signed on 23 September 1998, an affidavit by David Forrest sworn 23 September 1998, an affidavit of Mr Hamill himself dated 25 September 1998, a document entitled Contaminated Land published by the Department of Urban Affairs and Planning, a document entitled Australia and New Zealand Guidelines for the Assessment and Management of Contaminated Sites, an affidavit of Patricia Shantz dated 23 September 1998 and an affidavit sworn by Mr Fast Buck$ dated 13 October 1998.

2 UNREPORTED JUDGMENTS

This Court cannot receive fresh evidence on an appeal except on special grounds, see the Supreme Court Act s75A. No special grounds have been demonstrated. In particular, I am not persuaded that this was material that was not available to the appellant when the proceedings were heard below. I would refuse the application to receive the fresh evidence and I propose that the appeal be confined to grounds 2, 4, 7 and 8 on p91.

As to the application to add an additional ground of appeal namely that the council failed to advertise and notify as per the Local Government Act Pt2 Div 3 s705(3) and reg59(1)(b) and reg59(2) of the EPA Regulations 1994 I would refuse leave to amend the notice of appeal in this regard. The sections referred to deal with advertising a building application and an application involving designated development. This is not what this Court is or Bignold J was involved with. If the development application stands, the developer will have to file a building application and will (on what we have been told) have to comply with these requirements. The failure to do so is not a matter of touching the development application. Nothing that has been put to the Court today indicates that there was any obligation in relation to advertising, and certainly not an obligation relevantly stemming from those provisions. So I would refuse the leave to amend the grounds of appeal.

Powell JA I agree. Beazley JA I agree.

Leave to amend the grounds of appeal is refused.