Bardley-Smith v Penrith City Council - [2009] NSWLEC 1338

Land and Environment Court

of New South Wales

CITATION: Bardley-Smith & Ors v Penrith City Council & Anor [2009] NSWLEC 1338

PARTIES:
FIRST APPLICANT
Janis Margaret Bardley-Smith
SECOND APPLICANT
Anthony Munro Ferguson
THIRD APPLICANT
Ian Patrick Stubbs
FIRST RESPONDENT
Penrith City Council
SECOND RESPONDENT
Administration and Marketing Solutions Pty Ltd

FILE NUMBER(S): 40565 of 2009

CORAM: Acting Registrar Gray

KEY ISSUES: PRACTICE AND PROCEDURE :- Privilege claimed over subpoenaed material; Amendments to pleadings - whether leave should be granted to amend the pleadings where the relevant party is not joined; Order for discovery - whether order should be made.

LEGISLATION CITED: Evidence Act 1995 s 117, s 118, s 119, s 122
Land and Environment Court Act 1979
Uniform Civil Procedure Rules 2005

CASES CITED: Meteyard & Ors v Love & Ors as receivers and managers of Southland Coal Pty Ltd (2005) 65 NSWLR 36, [2005] NSWCA 444
Westfield Management Pty Limited & Anor v Gazcorp Pty Limited & (2) Ors [2004] NSWLEC 7
Westpac Banking Corporation v 789TEN Pty Ltd (2005) 55 ACSR 519, [2005] NSWCA 321

DATES OF HEARING: 8 October 2009

DATE OF JUDGMENT:
12 October 2009

LEGAL REPRESENTATIVES:
APPLICANTS
Mr C R Ireland
SOLICITORS
McPhee Kelshaw
FIRST RESPONDENT
Mr G Hartley, Solicitor
Gadens Lawyers
SECOND RESPONDENT
Mr J Kildea
SOLICITORS
Rotstein Lockwood Reddy Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

ACTING REGISTRAR GRAY

12 OCTOBER 2009

09/40565 Bardsley-Smith & Anor v Penrith City Council & Anor

JUDGMENT

1 ACTING REGISTRAR GRAY: There are before me two separate applications made by the applicants in these proceedings. The first application is for access to be granted to material produced in response to subpoenas issued to the second respondent (AMS) and to City Plan Services (CPS), over which there is a claim for privilege. The second application is made by way of notice of motion filed on 1 October 2009. The notice of motion seeks orders that firstly leave be granted to the applicant to file an Amended Summons and Amended Points of Claim and that secondly orders be made for discovery by the second respondent. The notice of motion also seeks an extension of the timetable in relation to the conduct of the proceedings.

2 The substantive proceedings concern a development application granted by the first respondent to the second respondent in relation to the tenancy fit out and use of premises at Supa Centa Penrith, at Pattys Place in Jamisontown for the purposes of a chemist warehouse and distribution centre. Development consent was granted by Penrith City Council (“the Council”) on 20 February 2009. On 31 March 2009, a submission was provided to the Council by Pikes Lawyers on behalf of My Chemist Pty Ltd in relation to condition 4 of the consent. On 7 April 2009, a modification application was made to the Council with respect to the same condition. The first respondent, the Council, modified condition 4 and provided notice of its determination in that respect on 28 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 1338
Decision Date: 12 October 2009

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Bardley-Smith and others sought access to subpoenaed material, the grant of leave to amend pleadings, and an order for discovery against Penrith City Council and another respondent. The first application concerned the grant of access to subpoenaed material, over which privilege was claimed. The substantive proceedings concerned the validity of development consent granted by the Council to the second respondent in relation to the use of premises at Supa Centa Penrith for the purposes of a chemist warehouse and distribution centre. The applicants sought to challenge the consent on the basis that the use for which consent was granted was a prohibited use under the relevant planning instrument. The second application was made by way of notice of motion filed on 1 October 2009. The notice of motion sought leave to file an Amended Summons and Amended Points of Claim, and orders for discovery by the second respondent. The notice of motion also sought an extension of the timetable in relation to the conduct of the proceedings. The court considered the evidence and submissions of the parties and dismissed the notice of motion. The court found that the privilege claim in relation to some of the subpoenaed material was well founded and ordered that the second respondent facilitate the grant of access to the remaining subpoenaed material. The court refused leave to amend the pleadings and to join a party to the proceedings, and found that the categories for discovery were not relevant to the facts in issue in the proceedings. The court made orders dismissing the notice of motion and extending the timetable for the proceedings.

Orders