Al Maha Pty Limited v Marrickville Council

[2015] NSWLEC 1561

Land and Environment Court

New South Wales

Medium Neutral Citation:	Al Maha Pty Limited v Marrickville Council [2015] NSWLEC 1561
Hearing dates:	18 March 2015
Date of orders:	18 March 2015
Decision date:	18 March 2015
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	Notice of motion for expedition dismissed
Catchwords:	EXPEDITION – whether special factor exists to warrant expedition – whether compressed timetable should be made
Legislation Cited:	Environmental Planning and Assessment Act 1979
Category:	Consequential orders (other than Costs)
Parties:	Al Maha Pty Limited (Applicant) Marrickville Council (Respondent)
Representation:	Counsel:     Solicitors: Gadens Lawyers (Applicant) Marrickville Council (Respondent)
File Number(s):	10146 of 2015
Publication restriction:	No

Judgment ON NOTICE OF MOTION

1. REGISTRAR: This matter came before me today on a Notice of Motion filed by the applicant seeking expedition of the hearing of the proceedings.  The application is supported by the affidavit of Ms Walsh, which outlines the history of the proceedings and also the basis upon which expedition is sought.

2. By way of background, the Land and Environment Court (the Court) granted consent to a development application on 22 May 2013 in relation to the development. An application was made to the Council for modification of that consent on 11 March, and that modification application remains a deemed refusal. Following the deemed refusal, the applicant commenced these proceedings on 9 March as an application to the Court for modification of the development consent pursuant to s 96(8) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

3. The application for expedition is made on the basis that construction of the development is currently underway and that, before construction of the buildings is complete, construction will have to be put on hold as the applicant awaits the outcome of the modification application.  The evidence is that that hold will cause financial loss to the applicant and, on that basis, an order for expedition is sought, in the first instance, and a compressed timetable in the second.

4. The Council opposes the application for expedition and submits that the financial stress, or the potential financial loss, that is in evidence is an ordinary risk inherent in a development of the size that is the subject of the proceedings.  Further, the Council submits that there is nothing on the evidence to show that the hardship is not being suffered as a result of the fault of the applicant; that is, there is no evidence of how the modifications arose or what steps were taken by the applicant in order to expedite the bringing of the proceedings once the modifications were known to have been sought.  Further, the respondent submits that there is no evidence in relation to sunset clauses concerning the sale of the units that are part of the development.

5. In considering the application for expedition, there are a number of factors to which I ought to turn my mind.

6. First, I ought to consider whether there is any special reason why these proceedings stand out from other proceedings and ought to be given a hearing date ahead of proceedings that have been commenced prior to it.  This could be considered in light of any prejudice or disadvantage that is suffered by the applicant if it was forced to wait to obtain a hearing date in the usual course.

7. Secondly, this prejudice must be weighed against any prejudice that might be suffered by the Council if I were to make an order for expedition.

8. Finally, in proceedings of this nature I am of the view that there is another factor that I ought to consider. This is an application pursuant to s 96(8) of the EPA Act, which is an application directly to the Court for a modification of a Court-granted consent. It is not an appeal to the Court from something that has already been determined by the Council or that the Council has had time to determine. As such, the Court needs to be in a position where it has adequate assistance from the parties to make a decision on the modification application. It would be regrettable, for instance, if I were to make an order for expedition that would ultimately result in a refusal of the modification application simply because there was not an adequate assessment of it by the parties' experts.

9. In considering, first, whether there is any special factor that makes these proceedings stand out from other proceedings in this Court, I am of the view that it is important to have regard to the nature of the proceedings.  Proceedings for a development application present an opportunity for someone to develop or use land.  These proceedings are an application to modify that opportunity.  That opportunity, in my view, has within it the inherent cost of awaiting the outcome of whether that opportunity can be pursued.

10. Whilst I accept, on the evidence, that there is likely to be financial hardship suffered by the applicant as a result of any delay in the proceedings, I am of the view that such hardship is an inherent risk of an application of this nature.  There is no evidence of the necessity of the modification application; for example, there is no evidence that these modifications are necessary to ensure the structural integrity of the building and the like; rather, the submissions go to the fact that the modification application is made as a result of design changes.  Therefore, it is the applicant's decision to make a modification application and it is this decision that may cause delay to the construction and therefore possible financial loss to the applicant.  By analogy, if one were to seek to demolish and restore their house through a development application and suffered loss by renting an alternate location for their home, you could not say then that the financial loss suffered as a result of that decision to develop one's own home should warrant an expedition of proceedings in the Court.

11. In light of that, I am of the view that the cost, and the possible financial loss which the applicant may suffer through its decision to make a modification application, does not mean that there is anything distinctive or unusual about these proceedings that warrants an order for expedition.  As I indicated earlier, such loss is an inherent risk of making a development application and, in these proceedings, making a modification application to the Court in relation to a development application already granted.

12. In relation to the application for a compressed timetable, I am of the view that the Council ought to have the opportunity to properly consider the modification application that is made in the proceedings.  This is important because this is an application made directly to the Court and has not had the opportunity to go before the Council for consideration prior to the matter coming before the Court.  Notwithstanding that, the Council ought to have the opportunity to consider the modification application, I cannot accept that the submission of the Council that 40 days is required to do so.  I am of the view that the proceedings can proceed in accordance with the Practice Note for the filing of the Statement of Facts and Contentions before the first directions hearing.

13. As a result, I am of the view that I ought not make the order for expedition, nor ought I make an order for a compressed timetable because I am of the view that it is important for the Court to be in a position to make a decision on the modification application with the due assistance of the parties’ experts in the proceedings.  Therefore, as indicated earlier, I decline to make those orders and I direct that the matter proceed in accordance with the Practice Note that applies to these proceedings.

14. The Notice of Motion filed on 9 March is dismissed.

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Decision last updated: 08 January 2016