Bligh v Minister Administering the Environmental Planning and Assessment Act (No 2)

[2012] NSWLEC 90

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bligh v Minister Administering the Environmental Planning and Assessment Act (No 2) [2012] NSWLEC 90

Hearing dates:

27 April 2012

Decision date:

27 April 2012

Jurisdiction:

Class 3

Before:

Biscoe J

Decision:

Hearing dates vacated. Directions made.

Catchwords:

PRACTICE AND PROCEDURE:- application to vacate hearing dates.

Cases Cited:

Bligh v Minister Administering the Environmental Planning and Assessment Act [2011] NSWLEC 220

Category:

Procedural and other rulings

Parties:

31061/10
Richard Bligh (Applicant)
Minister Administering the Environmental Planning and Assessment Act 1979 (Respondent)

31062/10
David Bligh (Applicant)
Minister Administering the Environmental Planning and Assessment Act 1979 (Respondent)

31063/10
Richard and David Bligh (Applicants)
Minister Administering the Environmental Planning and Assessment Act 1979 (Respondent)

31068 of 2010
Erolhold Pty Ltd trading as Bringelly Pork and Bacon Co (Applicant)
Minister Administering the Environmental Planning and Assessment Act 1979 (Respondent)

Representation:

COUNSEL:
Mr M Hall (Applicants)
Ms S Duggan SC and Mr S Nash (Respondent)
SOLICITORS:
HWL Ebsworth (Applicants)
Hunt and Hunt (Respondent)

File Number(s):

31061-63 of 2010 and 31068 of 2010

EX TEMPORE Judgment

1. This is a contested motion by the applicants for vacation of the hearing dates of 7-11 May 2012 in these proceedings for compensation for the compulsory acquisition of land.

1. One of the issues is whether the applicants should be compensated for disturbance of their piggery business conducted partly on the acquired land and partly on the retained land on the basis of its extinguishment by the resumption or on the basis of its continuance at an additional cost. When the proceedings came on for hearing last November, I acceded to an application to determine a preliminary question as to the value of the piggery business on the assumption that it was extinguished and stood over the balance of the proceedings to enable the applicants to apply to Camden Council for development consent for a waste water treatment system on the residue land which would permit continuance of the business. Due to a proposed rezoning, such a development application had to be made within a tight time-frame. I recounted these events and determined the preliminary question in Bligh v Minister Administering the Environmental Planning and Assessment Act [2011] NSWLEC 220. I said at [12]:

If development consent is obtained, the applicants anticipate that the parties will agree to appoint an expert to determine the capital cost and operating cost and to be bound by the expert's decision, thus avoiding the need to litigate that quantum issue. However, I was told that if the respondent does not accept that those costs are reasonable, then it will be necessary to ask the Court to determine whether they are reasonable under s 59(f). I was also told that resolution of the preliminary issue coupled with the development consent which the applicant hopes to obtain, could lead to resolution of the entire proceedings. In the circumstances I considered it appropriate to accede to the parties' request that I order determination of the preliminary question and stand over the balance of the proceedings.

1. The balance of the proceedings were stood over for hearing on 7-11 May 2012, by which time it was anticipated that the development application would have been determined.

1. The basis of the motion to vacate the hearing dates is that it is now evident that the development application will not be determined by then. The main reason for the delay emerges from a Council letter to the applicants dated 10 April 2012 advising that RailCorp's concurrence is required and that the Council had referred the development application to RailCorp on 16 March 2012, and enclosing RailCorp's letter of reply (of 30 March 2012 although it is erroneously dated 3 March). It appears that the applicants and their solicitors received the Council letter and enclosures on 12 April 2012. The RailCorp letter requested further information. The applicants have taken steps to provide that information and, to that end, are meeting today with RailCorp officers.

1. The respondent opposes vacation of the hearing dates. The respondent is concerned by further delay in finalising the proceedings particularly as (a) it was only during the hearing last November that the applicants embraced the respondent's position that waste could be disposed of on site, and (b) the applicant is incurring costs in the order of $40,000 per month to truck waste from the residue land, which forms part of its compensation claim. The period for which the trucking costs can be claimed may be influenced by the Court's determination of whether the applicants should be compensated on the basis of extinguishment or continuation of the business.

1. The respondent proposes that the hearing should resume in the tranche from 7 May subject to the development consent. That is, there would then have to be a further adjournment to await the outcome of the development application.

1. The remaining contentious issues appear to include the following, depending on whether or not the development consent is granted:

(a)   Market value of the acquired land.

(b)   Diminution in value of the retained land.

(c)   If development consent is not granted, then other waste water treatment options canvassed in evidence will have to be considered. If development consent is granted, then those other options do not have to be considered.\(d)The costing of the waste water treatment system the subject of the development application and the timing of the construction of that system if development consent is granted. Having regard to [12] of my earlier judgment cited above at [2], the parties agree that a parties' single expert should be appointed in respect of that issue.

1. I consider that there are too many uncertainties in satisfactorily resolving the remaining issues before it is known whether the development consent will be granted and if so on what conditions. The parties and the Court have proceeded so far down the path of awaiting determination of the development application that it is preferable that that path continue to be followed. Accordingly, I propose to vacate the hearing dates of 7-11 May 2012.

1. I make orders in accordance with, and note the parties' agreements in, the short minutes of order prepared by the parties dated 27 April 2012. I note that they include an order that the hearing dates of 7-11 May 2012 are vacated and orders in relation to the parties' single expert.

Amendments

07 May 2012 - typographical error in the first initial of counsel for the resopndent

Amended paragraphs: cover sheet

Decision last updated: 07 May 2012