Baulkham Hills Shire Council v Yates

[2008] NSWLEC 244

Land and Environment Court

of New South Wales

CITATION:

Baulkham Hills Shire Council v Yates [2008] NSWLEC 244

PARTIES:

APPLICANT:
Baulkham Hills Shire Council

FIRST RESPONDENT:
Norman Yates

SECOND RESPONDENT:
Jillian Yates

THIRD RESPONDENT:
Petre Suciu

FOURTH RESPONDENT:
Maraline Pty Limited (ACN 066 885 872)

FILE NUMBER(S):

41135 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Practice and Procedure :- application to stay Class 4 proceedings pending determination of Class 5 proceedings arising out of the same facts.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 (NSW), s 76A(1)(a)
Protection of the Environment Operations Act 1997 (NSW), s 144

DATES OF HEARING:

14 August 2008

EX TEMPORE JUDGMENT DATE:

14 August 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Ms K. Law, solicitor
SOLICITORS
Matthews Folbigg

FIRST AND SECOND RESPONDENTS:
Mr M. Baird, barrister
SOLICITORS
P J Donnellan & Co

THIRD RESPONDENT:
Mr N. J. Allan, barrister
SOLICITORS
Ziman & Ziman Solicitors

FOURTH RESPONDENT:
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

14 August 2008

41135 of 2008

BAULKHAM HILLS SHIRE COUNCIL v NORMAN YATES AND ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: The first and second respondents, Norman and Jillian Yates, and the third respondent, Petre Suciu, seek a stay of these Class 4 proceedings as against them pending the determination against the third respondent and the fourth respondent, Maraline Pty Ltd, of Class 5 proceedings numbered 50017/08, 50018/08, 50019/08 and 50020/08 arising out of the same facts. There is no motion for a stay by the fourth respondent, which is not represented. I am informed that the fourth respondent is in liquidation and that, consequently, the applicant, Baulkham Hills Shire Council, is considering whether to discontinue the Class 4 and Class 5 proceedings against it.

2 The council consents to a stay of the proceedings against all respondents pending determination of the Class 5 proceedings.

3 In the Class 4 proceedings the applicant council alleges that the respondents caused or permitted fill comprising waste to be transported to and deposited onto land at 95 Cranstons Road, Middle Dural without lawful authority, contrary to s 144 of the Protection of the Environment Operations Act 1997 (NSW). It is also alleged that that conduct constitutes carrying out development without consent being obtained or being in force, contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW). There is a lively issue as to which of the respondents were responsible for the alleged conduct.

4 The third respondent’s motion for a stay of the Class 4 proceedings as against him is put on two grounds. First, that continuation of the proceedings, particularly with any direction for him to file and serve his evidence, may prejudice his defence in the Class 5 proceedings. Secondly, that continuation of the Class 4 proceedings would be oppressive to him financially. His evidence indicates that he cannot afford to properly conduct defences in both the Class 4 and Class 5 proceedings.

5 The first and second respondents’ application for a stay of the Class 4 proceedings as against them is on two grounds. First, that otherwise there would be a multiplicity of proceedings. Secondly, that in the Class 5 proceedings one of the orders sought is that the third and fourth respondents remove the fill. If such an order were to be made and complied with, that may well have an effect on whether or not these Class 4 proceedings proceed against the first and second respondents.

6 In my view, a case for a stay of these proceedings pending determination of the Class 5 proceedings has been made out on the grounds advanced by the respondents. Accordingly, the orders of the Court will be as follows:

1. Order that these proceedings be stayed pending determination of Class 5 proceedings numbered 50017/08, 50018/08, 50019/08 and 50020/08 in this Court.
2. Upon determination of those pending Class 5 proceedings all parties are to promptly arrange for these Class 4 proceedings to be listed for directions.
3. In the event that the Class 5 proceedings are not determined by the end of January 2009, the parties are in any event thereafter to promptly arrange for these proceedings to be listed for directions.

7 Also before the Court is an application by the third respondent for an order that a notice to produce issued by the first and second respondents to the applicant and filed on 7 May 2008 be set aside on the grounds that (a) it is in the public interest that those documents remain confidential; (b) privilege; and (c) that production of the documents would be an abuse of process. It is conceded by the first and second respondents that, as the Class 4 proceedings have been stayed, it is appropriate that the notice to produce be set aside. All parties before me consent to an order that it be set aside. Accordingly, I order that the notice to produce issued by the first and second respondents to the applicant filed on 7 May 2008 be set aside.