Bykerk v Hunters Hill Council

[2001] NSWLEC 192

Land and Environment Court

of New South Wales

CITATION:	Bykerk and Anor v Hunters Hill Council [2001] NSWLEC 192
PARTIES:	APPLICANTS Bykerk and Anor RESPONDENT Hunters Hill Council
FILE NUMBER(S):	10289 of 2001
CORAM:	Pearlman J
KEY ISSUES:	Practice and Procedure :- practice direction - statement of issues - non-compliance - costs
LEGISLATION CITED:	Land and Environment Court Pre-Hearing Practice Direction 1999 par 7, par 10
CASES CITED:
DATES OF HEARING:	24/07/2001
EX TEMPORE JUDGMENT DATE :	07/24/2001
LEGAL REPRESENTATIVES:	APPLICANTS Mr J J Bingham (Solicitor) SOLICITORS Deacons RESPONDENT Ms K M Gerathy (Solicitor) SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND 10289 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 24 July 2001

JOHN BYKERK and SUSAN BYKERK

Applicants

v

HUNTERS HILL COUNCIL

Respondent

JUDGMENT

1. The matter before me is a notice of motion which seeks an order that the respondent file and serve within 14 days an amended statement of issues that complies with par 7(3) and par 7(4) of the Land and Environment Court Pre-Hearing Practice Direction 1999 and that the respondent provide particulars as requested in the letter from the applicants to the respondent dated 6 June 2001.

2. The statement of issues is an annexure to the affidavit of Ms Rosemarie Slip sworn on 12 July 2001. That statement of issues is dated 9 May 2001. It contains 14 issues, many of which refer by clause number to provisions of various planning instruments.

3. Paragraph 7(3) of the Pre-Hearing Practice Direction provides:

7(3) The statement of issues shall be so particularised as to enable the other party or parties to know the case that has to be met.

4. Paragraph 7(4) provides as follows:

7(4) Without affecting the generality of subparagraph (3), where an issue is raised asserting a non-compliance with an environmental planning instrument or a development control plan, the nature and extent of the non-compliance shall be clearly identified, and where practicable shall be quantified, and where an issue is raised asserting an adverse environmental impact on amenity, the precise nature and extent of each impact shall be clearly identified, and where practicable, shall be quantified.

5. Mr J Bingham, appearing for the applicants, took the Court as an example to par 10 of the statement of issues which provides in part:

10 The development fails to comply with the planning initiatives and objectives set out and inherent in a number of areas in Development Control Plan No 15 including …

and thereafter various clauses are referred to by number.

6. On 6 June 2001 the applicants’ solicitors wrote to the council’s solicitors requesting compliance with the Pre-Hearing Practice Direction and asking the council to particularise 56 matters. The council was asked to provide an amended statement of issues that complies with the Pre-Hearing Practice Direction.

7. On behalf of the council, Ms K Gerathy said that the council is preparing itself to answer all 56 paragraphs of that request for particulars and that it is proceeding to furnish a response and will be able to do so within a period of seven days.

8. In my opinion, however, that is not an answer to the notice of motion filed this morning. The Pre-Hearing Practice Direction is clear enough. It requires the applicants to know the case that has to be met. That cannot be satisfied by a mere reference to clauses in the particular instruments. The Pre-Hearing Practice Direction seeks the identification of non-compliance and it seeks where practicable quantification of non-compliance. None of that appears in the statement of issues filed in these proceedings.

9. I take at random one issue. Issue 4 states:

Adverse impact on an identified conservation item.

That is not a clear identification of any non-compliance and it is not a quantification. It is not so particularised as to enable the applicants to know the issue they have to meet.

10. It is true that the applicants sought particulars and the particulars so requested are lengthy. But the obligation is on the council to file a statement of issues which complies with the Pre-Hearing Practice Direction. If it had done so prior to today no doubt the notice of motion might have been withdrawn. That is not what has happened. In my opinion, the emphasis by Ms Gerathy on the council’s preparation of a response to the letter of 6 June 2001 is beside the point. The fact is that a statement of issues has been issued by the council which I find does not comply with the Pre-Hearing Practice Direction.

11. Accordingly, the applicants are entitled to the order that they seek in their notice of motion. They seek also the payment of costs. The Pre-Hearing Practice Direction contemplated just such an order because it provides in par 10(1) that where a respondent fails to comply with par 7 the Court may order the party in default to pay the costs of any other party occasioned by the failure. The costs are said to include the lengthy material that forms annexures D, E and F to Ms Slip’s affidavit where the applicants have endeavoured themselves to try to work out what in truth are the issues in this case. No doubt that work would not have been necessary if at least some effort had been made by the council to comply with the Pre-Hearing Practice Direction.

12. Accordingly I am prepared to make the order sought and also to require the council to pay the applicants’ costs.

13. My orders are as follows:

(1) I direct the respondent to file and serve within 14 days an amended statement of issues that complies with par 7(3) and par 7(4) of the Land and Environment Court Pre-Hearing Practice Direction 1999 and to provide particulars as requested in the letter from the applicant to the respondent dated 6 June 2001.

(2) I order the respondent to pay the applicants’ costs of this motion as agreed or as assessed.