Relevant Case Law and Statutory Provisions

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
  • Page:
    3
  • Words:
    1781

Question One

Introduction

The complaint (City) against Investments on grounds that he breached a condition of approval by the City’s development plan offering the condition required that Investments pay a contributions of $29,370 to the scheme of local district drainage beforehand of development of dwellings. The case encompasses three parties that include the Lawyer, Planning Officer John and the City of Swan. The Lawyer approaches the Planning Officer John to seek McKechnie J advice on whether paying a contributions to the scheme of local district drainage beforehand of development a building.

CITY OF SWAN Appellant AND INVESTMENTS (WA) PTY LTD Respondent

The case City of Swan Appellant And Investments (Wa) Pty Ltd Respondent is the case handled by the Magistrate court which resulted to the dismissal under the grounds of S 218 Act 2005 (WA). The case accentuates the appeal for the case held at 2010 in Midland Magistrate court resulting to complainant inconsideration on grounds of ambiguity of the information failing to give a clear verdict that the complainant is held responsible. The appeal states that the city was granted grounds by the Act pursuant to local to local training act described under the Interpretation Act of 1984. The case produce the parol evidence principle rule that contradict the case exception through the comprehensiveness that extrinsic evidence are not used. The exception of ambiguity was held in authorities to the ‘Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352:’ where the interpretation of the contract was not admissible for contradicting the meaning of the binding statement. Therefore, the case was held binding to subject to the magistrate verdict and the City was support to be compensated.

The Lawyer is given a positive answer with a formal writing from the Planning Officer and submits to the Council an official Development Application. John is unhappy because the Development Application is not the newly ratified form by the City of Swan. The council planning officers subsequently pen a design report with a sanction for the bid to be authorized subject to the authorization of Western Power, Western Australia and the view to the river is not obstructed. Based on case City of Swan Appellant And Investments, the council meeting, the grant of authority for the proposed development is rejected on the basis that the Local Council Planning Policy does not concur with the location of the wind turbines as they pose a danger to a rare bird and an incorrect form was used.

The pertinent enactment subject to the indictment notice affirmed an offense under s 218(c) of the Act which gives as takes after: 218. Reputation of arranging plan where the person who contradicts the arrangements of an arranging plan contravenes the any advancement in any part of a region subject of a region arranging plan or any part of a zone subject of a nearby arranging plan. The act also accentuates the commencement of any such advancement which is required to follow an arranging plan generally than as per any condition initiated under this Act.

Rights of the Lawyer

Subject to the directions that articulate privity of contract a person who enter into a pact whether implied or expressed can take legal action or be indicted on the contract which substantively articulates the terms of the services that are offered by a person with professional skills. Standard of care is needed to satisfy the obligations of a given contract as in the perspective of negligence though circumstances that were the liability arise differs in the contracts which are created voluntarily by the parties. Even though the common objective of the standard of care cannot be reduced, it can substantively be elevated where the defendant has epitomized skills more than what an ordinary person would possess.

The case Hedley Bryne & Co Ltd vs. Heller & Partners Ltd (1964) shaped the statute of reasonable reliance by those who have a claim against the abilities of the defendant. The case accentuates ‘where a person is placed for others to rely on their judgment or skills to substantively make a careful inquiry, and the person takes it upon themselves to give a piece of advice, or permit that the advice is passed on to others then a duty of care arises.’ The Lawyer is given an affirmative answer by John on building a rooftop wind turbine at Lot 3 Victoria Terrance. The Lawyer subsequently present the Development Application which is rejected on the basis that the wind turbines pose a danger to a rare bird species. The Lawyer rights accentuate that he relied on John who had professional skills to advise him accordingly. A duty of care, therefore, arises on the professional capacity of the Planning Officer.

The Lawyer subject to the provisions of the Act, he has the right to appeal against the Council exercise on a discretion to impose a condition of planning approval or refuse to grant planning approval.

Rights of the Planning Officer John

The Australian law seeks first to determine whether the case at hand fits the category that is established on the duty of care. The rights of John would encompass a degree of vulnerability of the Lawyer on his action was microscopic as the Lawyer presented to the Council an outdated Development Application. Moreover, the Planning Officer rights encompass the degree of knowledge of the probability and the likely magnitude of harm that the Lawyer incurred.

Rights of the City of Swan

In determining the Lawyers’ application, some general provisions are articulated in describing the rights of City of Swan

The Council may refuse to consider a request that does not comply with the requirements. The conditions may include a form that is described in Schedule 7 and is to be signed by the owner of the land or the agent authorized for the purpose that the owner of land to which the application relates.

The Council subject to the City Planning Scheme no.2 may support or refuse the submission based on the proposal measure and rapport to existing buildings and the surroundings which are made of heritage and the environment.

In determining the non-complying application as articulated by the Lawyer use of an incorrect Development Approval an application that do not comply with a standard or requirement that is described in the planning policy is articulated as non-compliant. Subject to the clause the Council may refuse or approve the non-complying application.

Question B

Introduction

The case study heightens Lawyer John who owns 90 hectares lot which abuts a crown reserve and national park in the north and on the west a road reserve vested in the crown. 30 hectares of Lawyer John has been identified by the UN as a wetland and is associated with buffer vegetation that is important to the world for purposes of protection as it is a place that is important for Cultural and Natural Heritage and the Commonwealth is a signatory to its protection. Lawyer John, however, has plans to construct a moderate sized hydroelectric dam called Jarding Dam. The State Government for Western Australia on hearing Lawyer John plan instruct the Environment Protection Authority to formulate an Environmental Management Plan for the disputed site. John is not happy with the turn of events and seek approval from the Council engineer and starts laying boulders and sand on both the road and the site.

Legal issues that Lawyer John should argue (Applicant)

Common law has for a long time regarded property rights for a person as fundamental as articulated by William Stone in 1773 that ‘there is nothing which so generally strikes the imagination and engages the affection of mankind, as the right to property.’ Jeremy Bentham (1748-1832) philosophical arguments accentuate ‘property and law are born together and die together. Before laws were made there was no property, take away laws, and property ceases’. Possession of right of property is protected by the law of torts and by criminal laws (Mandelker, 2014). . An intrusion on the real property in possession of another may result to the tort of trespass to land or nuisance as articulated in the case of Entick v Carrington. A reasonable compensation should be given where property rights encroach. This was affirmed by French CJ in R&R Fazzolari Ltd v Parramatta City Council and has remained the case in Australia that compulsory acquisition and compensation in such acquisition is an entire creation of the statute. Therefore if the Commonwealth and the State were to compulsory acquire Lawyer John subjected land, he should be reasonably compensated.

Legal arguments by the Commonwealth and State (Defendant)

A range of statutory provisions may be characterized as interfering with vested rights in a property whether the interference is considered justified or not. The Land Acquisition Act 1989 is a critical legislation that concerns the acquisition of land by the Commonwealth. The Commonwealth with some exception cannot acquire an interest in a land other than under the provisions encapsulated by the Act. Environmental laws may be understood as any statute that also comprises of provisions that aim to protect the environment and conserve natural resources in the interest of the public. There are around 60 Commonwealth environment-related statutes in force and may interfere with real property rights by authorizing compulsory acquisition or regulation in the use of land.

The EPBC Act is the Australian Government environment legislation, and it affects the landowner rights by imposing environmental land use restriction. A person is prohibited from taking action that will have a significant impact on the world heritage values, a listed threatened ecological community and a listed endangered species which is either a civil penalty or offense. The potential EPBC Act to encroach on vested property as illustrated in Greentree v Minister of the Environment and Heritage. The Full Court of Federal Court upheld the decision of the Federal Court that Mr. Greentree had taken an action which significantly impacted the ecological character of a declared Ramsar wetland which was contrary to EPBC Act.

The case of Commonwealth v Tasmania, the argument by Tasmania accentuated that the relevant Commonwealth statute and regulations which did not allow the construction of a hydro-electric dam in an area in south-western Tasmania were inapplicable because they instituted a procurement of property on other than just term. The state arguments heightened that an acquirement can occur through the action of a legislation which so restrict land usage and that it assumes the owner privileges for an indefinite time. The High Court, however, rejected Tasmania contention with three of the four justices rejecting the issue advanced by Tasmania.

References

City of Swan v investments (WA) Pty Ltd. (2011, February 9 ). Retrieved from http://www.austlii.edu.au/au/cases/wa/WASC/2012/17