Besmaw Pty Limited v Sutherland Shire Council [No 1]

[2003] NSWLEC 65

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Land and Environment Court

of New South Wales

CITATION:

Besmaw Pty Limited v Sutherland Shire Council and Another [No 1] [2003] NSWLEC 65

PARTIES:

APPLICANT
Besmaw Pty Limited

FIRST RESPONDENT
Sutherland Shire Council

SECOND RESPONDENT
The Minister administering the Environmental Planning and Assessment Act 1979

FILE NUMBER(S):

40238 of 2001

CORAM:

Talbot J

KEY ISSUES:

Practice and Procedure :- application to amend - prejudice - supplementary particular allowed

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 99

CASES CITED:

DATES OF HEARING:

11/03/2003

EX TEMPORE
JUDGMENT DATE :

03/11/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr M H Tobias QC with Ms H Irish (Barrister)
SOLICITORS
Corrs Chambers Westgarth

FIRST RESPONDENT
Mr T F Robertson SC with Mr M J Leeming (Barrister)
SOLICITORS
Woolf Associates

SECOND RESPONDENT
Mr B W Walker SC with Mr J E Robson (Barrister)
SOLICITORS
Freehills

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40238 of 2001

Talbot J

11 March 2003

Besmaw Pty Limited

Applicant
v

Sutherland Shire Council

First Respondent

The Minister administering the Environmental Planning and Assessment Act 1979

Second Respondent

Judgment

Introduction

First Respondent’s Application to Amend

1 HIS HONOUR: After having heard the submissions and having now had the opportunity to peruse the proposed supplementary particular by the first respondent which, in effect, is in the nature of a defence, I recognise that having regard to the fact that Mr Ford has been released and there may be difficulty in arranging for his recall that there could be a prejudice to the applicant in meeting the assertion that arises in the supplementary particular.

2 I also recognise that there could be a prejudice to the Minister, in the manner that Mr Robson outlined, in that a line of inquiry may have been followed and the Minister could have taken the opportunity to consider whether further evidence was required in the Minister’s case.

3 To be balanced against that prejudice is that, on one view, the additional particular relates to new evidence in respect of work that took place between 3:00pm and 3.30pm on 19 September 1997. It was not previously specifically isolated from the other work that was undertaken on that day and already the subject of particularisation and evidence in various affidavits.

4 The allegation that the first respondent seeks to make in respect of that work is a significant one in that it raises the issue of whether as the work was undertaken in the absence of the archaeologist, Mr Ford, there has been a breach of condition 16 of the consent, thereby disentitling the applicant to rely upon that work for the purposes of commencement in the context of s 99 of the Environmental Planning and Assessment Act 1979, as it then was.

5 On balance, notwithstanding the prejudice that I have identified, in my view as the evidence has been given, it is in the interest of justice and a proper consideration and determination of the issues that arise particularly by way of an averment to the contrary of the applicant’s claim that it has commenced development in accordance with the law that the amendment by way of a supplementary particular be allowed and I so allow it. I will add the further particular to exhibit M.