BGP Properties Pty Limited v Lake Macquarie City Council

[2003] NSWLEC 382

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Land and Environment Court

of New South Wales

CITATION:	BGP Properties Pty Limited v Lake Macquarie City Council [2003] NSWLEC 382
PARTIES:	BGP Properties Pty Ltd (Appl) Lake Macquarie City Council (Resp)
FILE NUMBER(S):	10042 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Practice and Procedure :- Adjournment Adjournment sought to allow work in relation to stormwater and flooding on site Where appeal would fail if adjournment not granted Held: adjournment granted
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	20-21 October 2003
EX TEMPORE JUDGMENT DATE :	10/21/2003
LEGAL REPRESENTATIVES:	P W Larkin/C Norton (Appl) Sparke Helmore (Sol - Appl) I Hemmings (Resp) Peter Rees (Sol - Resp)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10042/03

McCLELLAN J

TUESDAY 21 OCTOBER 2003

B G P PROPERTIES PTY LIMITED

Applicant
v

LAKE MACQUARIE CITY COUNCIL

Respondent

Judgment

(on application for adjournment – see p 94)

Introduction

1 HIS HONOUR: The applicant has this morning sought an adjournment to enable further work to be done with respect in particular to the stormwater and flooding regime on the site: This will also involve some groundwater modelling.

2 The council has also put in issue the question of the impact of the proposed development upon and their intrusion into the land to be left undeveloped. However, I do not understand the applicant to be seeking an adjournment to enable further examination of that aspect of the matter.

3 The position in relation to water on this site is significant in these proceedings. The movement of ground and surface water will have an impact upon threatened and endangered species and ecological communities which have been identified on parts of the site. Plainly, the nature and extent of the development also has a potential to cause flooding impacts on adjoining properties. This follows from the fact that the current development proposal provides for significant filling on much of the area proposed to be developed.

4 The applicant has come to this position after the engineers for both parties met yesterday and endeavoured to reach a common understanding. I have been told that a common position has been reached but it involves a recognition that further detailed work needs to be done.

5 The council says that the need for this work had been identified at an earlier time and it is true that the council has said for many months that the application was not supported by sufficient information to enable it to be adequately considered. Accordingly the council submits that in circumstances where the applicant has been on notice that there was a problem it should not now be permitted to have an adjournment to cure those problems. Rather it is submitted that I should force the applicant on with the inevitable consequence that this appeal will fail.

6 If the council is right the consequence of that attitude would be of course that the work done in these proceedings to date would be lost and there is a real risk that the energies which have been placed into reaching a joint position in relation to many matters will be dissipated and the effort wasted. I do not see that as appropriately reflecting the public interest and I do not believe that is an appropriate attitude for the council to adopt in these proceedings. Accordingly I do not propose to refuse the application for that reason.

7 Council has suggested that there might be some costs lost or thrown away if an adjournment is granted. That remains a possibility and it may be that at the end of this case when the results of the further study are known, the council may have a legitimate claim for costs which were thrown away because the applicant continued with the application notwithstanding that it had been warned that the information which supported it was inadequate. However it would not be possible to form a judgment about that matter until the conclusion of the proceedings. Certainly it is not possible to evaluate or reach a conclusion in relation to that aspect of the matter today.

8 This is an application for a significant development. The land has been zoned industrial and it is proposed to be used for an industrial purpose. From the information presently available to the Court it is apparent that if the zoning is to be implemented in any practical way there must be some physical intrusion into the site with the possibility of impacts upon valuable ecological communities and populations. It is also plain that intrusion into the site will give rise to impacts upon the ground water and surface water regime which need to be addressed and adequately managed. It would appear that the applicant now accepts that before it could possibly justify the development in the form presently proposed further work needs to be done.

9 In my opinion it is important that the Court facilitate the most expeditious way of reaching a conclusion in relation to the appropriate development of the site. This can only be done by allowing the adjournment thereby ensuring that so far as possible the efforts which have so far been put in to identifying the appropriate development for this site are not lost and a conclusion reached in relation to the site at the earliest possible date. However, as I have said in granting the adjournment I expressly reserve the question as to whether the council may have a legitimate claim for some costs at the end of the proceedings.

10 I propose to adjourn the matter to a date in the second half of March of 2004. I shall direct the parties to bring in some short minutes which provide for a detailed timetable in relation to the preparation and further exchange of expert reports and joint meetings in relation to the outstanding issues on this site.

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