Scharer v New South Wales

(2001) 53 NSWLR 299; [2001] NSWCA 360

NSW Court of Appeal

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Interrogate

Catchwords

1. Environmental Law
2. › National Parks
3. › Easements
4. › Pre-existing easements over national park land
5. › Deeming provision
6. › Whether easement deemed granted under National Parks and Wildlife Act 1974 is a right conferred by planning or environmental law
7. › National Parks and Wildlife Act 1974 (NSW), s 153(3)
8. › Land and Environment Court Act 1979 (NSW), ss 20(2)(a), 71
1. Practice and Procedure
2. › Jurisdiction
3. › Transfer of proceedings
4. › Supreme Court to Land and Environment Court
5. › Exclusive jurisdiction of Land and Environment Court
6. › Whether s 72 of Land and Environment Court Act 1979 confers discretion where matter within exclusive jurisdiction
7. › Land and Environment Court Act 1979 (NSW), s 72
1. Practice and Procedure
2. › Jurisdiction
3. › Land and Environment Court
4. › Ancillary jurisdiction
5. › Whether damages claim ancillary to declaratory and injunctive relief within exclusive jurisdiction
6. › Land and Environment Court Act 1979 (NSW), s 16(1A)
1. Real Property
2. › Easements
3. › Statutory deeming provisions
4. › Effect of deeming provision on source of easement
5. › Whether deeming transforms source of power from general law to statute
6. › National Parks and Wildlife Act 1974 (NSW), s 153(3)

Quick Take

A pre-existing easement over land in a national park that is deemed by s 153(3) of the National Parks and Wildlife Act 1974 to have been granted under that Act is a 'right conferred by' a planning or environmental law within s 20(2)(a) of the Land and Environment Court Act 1979, giving the Land and Environment Court exclusive jurisdiction. Damages claims arising from obstruction of such an easement are either within the Court's jurisdiction as enforcement of the same right, or ancillary under s 16(1A). Section 72 of the LEC Act does not confer a discretion to retain proceedings in the Supreme Court where the matter falls within the exclusive jurisdiction of the Land and Environment Court.