Baulkham Hills Shire Council v Yates

[2008] NSWLEC 94

Land and Environment Court

of New South Wales

CITATION:

Baulkham Hills Shire Council v Yates [2008] NSWLEC 94

PARTIES:

APPLICANT:
Baulkham HIlls Shire Council

FIRST RESPONDENT:
Norman Yates

SECOND RESPONDENT:
Jillian Yates

FILE NUMBER(S):

41135 of 2007

CORAM:

Biscoe J

KEY ISSUES:

Practice and Procedure :- vacation of hearing dates to allow council time to decide, in light of recent evidence, whether to commence class 4 or class 5 proceedings against third party.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, ss 76A (1)(a), s 127(7)

DATES OF HEARING:

15/02/2008

EX TEMPORE JUDGMENT DATE:

15 February 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M C Fraser, barrister
SOLICITORS
Matthews Folbigg Pty Ltd

RESPONDENTS:
Mr R O'Gorman-Hughes, barrister
SOLICITORS
P J Donnellan & Co

JUDGMENT:

- 3 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

15 February 2008

41135 of 2007

BAULKHAM HILLS SHIRE COUNCIL v YATES AND ANOR

EXTEMPORE JUDGMENT

1 HIS HONOUR: This is an application by the applicant council to vacate the hearing dates on 3 and 4 March 2008.

2 These are proceedings in Class 4 of the Court’s jurisdiction. The council seeks a declaration that the respondents, Mr and Mrs Yates, have carried out development without consent contrary to s 76A (1)(a) of the Environmental Planning and Assessment Act 1979 at 95 Cranstons Road, Middle Dural by placing fill, waste material and the like upon the land.

3 Mr Yates recently filed an affidavit pursuant to a direction of the court in which he has indicated that he engaged a third party to place topsoil on this residential property which Mr and Mrs Yates own; that, without their authority the third party placed far more material there; and that this occurred whilst Mr and Mrs Yates were on holiday. That material, as I understand it, is the subject of these proceedings.

4 The third party is said to be a Mr Peter Suciu. The council tells me that it has been investigating the activities of Mr Suciu in relation to dumping of materials on this and other properties in the council’s area either with or without the authority of owners, and that the council has been considering a measure of bringing a Class 5 prosecution against him.

5 Having regard to the recent affidavit of Mr Yates, the council seeks to have the hearing dates vacated in order to have an opportunity to make a decision as to whether it should commence Class 5 proceedings against Mr Suciu, or whether it should take Class 4 civil enforcement proceedings against him probably by joining him as a respondent to these proceedings. Of significance is that under s 127(7) of the Environmental Planning and Assessment Act1979, a Class 5 prosecution cannot proceed against him if Class 4 proceedings are pending.

6 The respondents do not oppose the application to vacate the hearing dates, subject to the matter of costs. I consider that it is appropriate in the circumstances to vacate the hearing dates subject to imposing a fairly tight timetable to ensure that matters proceed reasonably expeditiously. Accordingly, I make the following orders:

1. The hearing dates on 3 and 4 March 2008 are vacated.
2. The council is to notify the respondents on or before 29 February 2008 as to whether they will be commencing Class 5 or Class 4 proceedings against Mr Suciu and, if Class 4 proceedings, whether they intend to join him as a respondent to these proceedings or to commence separate proceedings against him.
3. The council is to commence any proceedings against Mr Suciu that it wishes to commence on or before 7 March 2008.
4. The council is to pay the respondent’s costs of today and any costs thrown away occasioned by the vacation of the hearing dates.
5. Liberty to apply on three days notice.
6. The council is to arrange for these proceedings to be listed on the return date of the proceedings to be commenced against Mr Suciu.
7. The applicant is to provide the particulars requested in the respondent’s solicitors’ letter dated 23 January 2008 by 29 February 2008.
8. The applicant is to informally produce the documents requested in the respondent’s solicitors’ letter dated 23 January 2008 by 29 February 2008 to the extent that the applicant does not object to such production, such production to be seven days after commencement of the proceedings against Mr Suciu.