Catholic Metropolitan Cemeteries Trust v Penrith City Council

[2021] NSWLEC 5

Land and Environment Court

New South Wales

Medium Neutral Citation:

Catholic Metropolitan Cemeteries Trust v Penrith City Council [2021] NSWLEC 5

Hearing dates:

27 and 28 January 2021

Date of orders:

28 January 2021

Decision date:

28 January 2021

Jurisdiction:

Class 1

Before:

Moore J

Decision:

Leave granted to rely on amended plans and additional reports

Catchwords:

DEVELOPMENT APPEAL - application to rely on further amended plans and additional reports - consideration of whether the scope of the proposed amendments breached reg 55 of the Environmental Planning and Assessment Regulation 2000 - Applicant agrees to remove contentious aspects of proposed amendments - Applicant undertakes to lodge a separate development application with the Respondent for the removed contentious aspects of proposed amendments - revised proposed amended plans and reports permissible - consideration of whether lateness of amendments causes prejudice to the Respondent requiring vacation of hearing dates - Respondent not so prejudiced so as to require vacation of hearing dates - leave to amend granted and revised pre-trial directions made

Legislation Cited:

Environmental Planning and Assessment Regulation 2000, reg 55

Cases Cited:

Ebsworth v Sutherland Shire Council [2005] NSWLEC 603

Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90

Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155

Category:

Procedural rulings

Parties:

Catholic Metropolitan Cemeteries Trust (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
Mr N Eastman, barrister (Applicant)
Mr A Pickles SC (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sparke Helmore (Respondent)

File Number(s):

364850 of 2019

Publication restriction:

No

EXTEMPORE Judgment

1. HIS HONOUR: In November 2017, the Catholic Metropolitan Cemeteries Trust (the Applicant) lodged a development application with Penrith City Council (the Council) seeking consent for a large cemetery development on golf course land at Mulgoa. That application was determined by refusal by the Sydney Western City Planning Panel pursuant to direction by the Independent Planning Commission. As a consequence of that, the Applicant commenced Class 1 proceedings in this Court seeking to have the proposed development approved.

2. In late 2019, an application was made on behalf of the Applicant seeking to amend the development application. That application to amend was granted and was supported by an affidavit of a solicitor for the Applicant, Mr Salon, an affidavit which, with respect to relevant documents attached to it, became Exhibit C in these proceedings before me.

3. In the final throes of 2020, the Applicant sought to bring before the Court Notice of Motion making a further application to amend its proposed development. The primary effect, as I need to deal with it today, of that proposed amendment was to more than halve the number of burials able to be accommodated in the cemetery element of the proposed development for which leave had been granted at the end of 2019.

4. Also incorporated in that application to amend were significant and, it is fair to say, contentious additional elements associated with future development of the clubhouse and clubhouse-associated facilities of the golf course. That gives rise to issues of permissibility with respect to those developments.

5. The Notice of Motion came on for hearing before me yesterday, 27 January 2021. During the course of those proceedings, I observed that it seemed to me that these matters were the primary contentions pressed by the Council by Mr Pickles SC, its representative on the Notice of Motion, in proposing that I ought not grant leave to amend as the amendment did not fit within the permissible scope of reg 55 of the Environmental Planning and Assessment Regulation 2000 (as considered in cases such as Ebsworth v Sutherland Shire Council [2005] NSWLEC 603, determined by Talbot ACJ; Radray Constructions Pty Limited v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155, determined by Jagot J or, more recently, by Robson J in Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90).

6. It seemed to me that, as I proposed to the parties on that occasion, the severing of the clubhouse-related elements of the proposed amended plans from the cemetery-related elements of the proposed amended plans ought cause the Council to adopt the proposition that reg 55 would not be contravened (if the application to amend was confined entirely to what might be described as the public open space and cemetery elements of the proposed development).

7. Mr Pickles indicated to me that that position was accepted by the Council but that the Council would, if that position was pursued by the Applicant, still wish to contend that the hearing dates in March 2021 for any more limited consideration should not be able to be held as the Council would be prejudiced in its preparation for such a hearing.

8. Mr Eastman, counsel appearing for the Applicant, was instructed to agree to limit the nature of the matters now sought and, to that end, an Amended Notice of Motion was filed this morning seeking to confine matters to what can be described as the public open space and cemetery elements of the application. I have, today, granted leave to rely on that Amended Notice of Motion.

9. As part of that, although expressed as a potential order, it is to be noted that the Applicant proposes to give an undertaking to the Court as a result of the orders that I make in these proceedings, that the relevant clubhouse‑related elements will be the subject of a separate development application to be made to the Council and lodged with the Council by 28 February 2021.

10. On that basis, I am confined to considering whether or not I should hold the dates of the hearing for those matters for which leave has now been granted.

11. I should also observe that, as I dealt with briefly yesterday, there is to be a further amendment, which will need to be reflected in the orders, that incorporates two allotments of land that were inadvertently omitted from the application that was made to the Council (that not being a matter of controversy but a matter which will need to be accommodated in the orders that I make today as the outcome of these proceedings).

12. Contingent on the question of whether or not I hold the hearing dates, the parties have settled a draft set of Short Minutes of Order which will need to be the subject of minor revision - incorporating the two allotments to which I have just referred and noting the undertaking made with respect to the clubhouse development application. Those Short Minutes of Order, in proposed Orders 3(1) to 3(6), make provision for joint conferencing of experts in the six disciplines that are said to be engaged in these proceedings.

13. With respect to those, the primary area, on my reading overnight of those documents contained in Exhibits A and B and having regard to the matters to which Mr Eastman took me to during the course of submissions yesterday, that contains the most significant changes to the earlier elements of the cemetery and public open space element now before the Court are those relating to the extent of flooding. The extent of potential flooding is what has provided additional site constraints, causing the ameliorative nature of the proposed amendments to the cemetery and public open space application.

14. A good deal of basal material from the various experts, save with respect to flooding, has been available to the Council since the time of the material filed in support of Mr Salon’s application for amendment at the end of 2019.

15. I am satisfied, although it is a compressed and generally otherwise pressured timetable, that there has been sufficient material available for a considerable period of time not to discommode unduly the experts in considering the material and preparing for the hearing in March 2021. I am satisfied, under those circumstances, that it is appropriate that the hearing dates should be held.

16. However, I am also mindful of the fact that it is at least possible that matters may emerge during the consideration by the experts of the new material, particularly in the Council’s experts’ consideration of that material, that there should be leave for the Council to approach the Court should circumstances arise that would require it, in its opinion, to lodge a further application to vacate the hearing dates.

17. That should be provided for, in the orders, on three days’ notice. It seem to me, under the circumstances where I have dealt with this application and the timetabling, any such motion should be made returnable before me on three days’ notice with liberty, if the matter is urgent, to approach my Associate and have the matter listed on a shorter return timetable if that is agreed by the parties.

18. Under those circumstances, I am prepared to hold the hearing dates and make the Short Minutes of Order timetabling the matter in the terms proposed in the document provided to me this morning, but with the addition of the notation of the clubhouse application; the addition of the amendment incorporating the two now-to-be incorporated allotments; and the incorporation of a final order permitting the relisting if it is necessary for that to occur.

19. The draft Short Minutes of Order should be amended in the terms that I have outlined; settled with Mr Eastman’s instructing solicitor; and provided to my Associate by midday tomorrow. I will then finalise them in chambers.

SHORT EXCHANGE CONCERNING FURTHER PROCEDURAL MATTERS

20. As a matter of formality, I adjourn the matter until 4.15 tomorrow afternoon for mention on the basis that if comprehensive, settled Short Minutes of Order are provided to my Associate by midday tomorrow, I will make those orders in chambers and vacate the mention at 4.15 tomorrow afternoon.

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Decision last updated: 03 February 2021