Central Coast Council v 40 Gindurra Road Somersby Pty Ltd

[2019] NSWLEC 101

Land and Environment Court

New South Wales

Medium Neutral Citation:	Central Coast Council v 40 Gindurra Road Somersby Pty Ltd [2019] NSWLEC 101
Hearing dates:	12 July 2019
Date of orders:	12 July 2019
Decision date:	12 July 2019
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The First Respondent’s notice of motion dated 5 July 2019 is dismissed.  (2) The Applicant’s costs of the notice of motion dated 5 July 2019 are to be paid by the First Respondent.
Catchwords:	PROCEDURE – notice of motion seeking order to adjourn Class 4 proceedings dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 9.46(3) Civil Procedure Act 2005 ss 56, 57, 58
Category:	Procedural and other rulings
Parties:	Central Coast Council (Applicant) 40 Gindurra Road Somersby Pty Ltd (First Respondent) William Dagger (Second Respondent)
Representation:	COUNSEL: S Nash (Applicant) R Clark, in person (First Respondent) Submitting appearance (Second Respondent)   SOLICITORS: Central Coast Council (Applicant) N/A (First Respondent) Lucinda Lyons Clyde & Co (Second Respondent)
File Number(s):	18/156286

EX TEMPORE Judgment

1. Civil enforcement and judicial review proceedings have been commenced by the Central Coast Council (the Council) concerning land at 40 Gindurra Road Somersby NSW (the site) owned by the Respondent company. The declarations sought in the amended summons include that a complying development certificate No 14-0912 (the CDC) is invalid and that development being the use of land for the purpose of a waste or resource management facility was being carried out without the necessary development consent and that filling of land had occurred which required development consent without the necessary development consent.

2. Numerous consequential orders are sought restraining use of the site for a waste or resource management facility and requiring substantial remediation work including sediment and control. These Class 4 proceedings have been allocated hearing dates on 5-8 August 2019.

3. The Respondent, represented by its director Mr Clark, filed a notice of motion dated 5 July 2019 seeking an order that these Class 4 proceedings be adjourned, effectively meaning stood over pending the outcome of Class 1 merits appeal 2019/90311 in relation to DA55744 lodged by the Respondent with the Council. A consequence of such an order would be the vacation of the hearing dates in August 2019.

Class 4 chronology

4. The Class 4 civil enforcement and judicial review proceedings were commenced by the Council by summons on 18 May 2018. On 28 November 2018 an amended summons was filed.

5. An interlocutory injunction restraining the bringing of further material onto the site was made by a judge of the Court on 29 May 2019.

6. A notice of motion dated 8 November 2018 was filed by the Respondent seeking similar relief, that the Class 4 proceedings be adjourned pending the outcome of a Class 1 appeal. The motion was heard and dismissed on 28 November 2018.

7. The Class 4 matter was set down for hearing on 21 February 2019.

8. Consent orders were made by a judge of the Court on 26 February 2019 which required the implementation of erosion and control measures in accordance with a sediment and erosion control plan attached to the orders which had been approved by the Council.

Class 1 chronology

9. I was informed that a composite Class 1 appeal for four development applications (DAs) was filed by the Respondent in the second half of 2018. Subsequently separate Class 1 DA appeals were ordered to be filed by the Court.

10. Class 1 appeal 2019/90311 was filed 22 March 2019. I was informed it has hearing dates in March 2020.

11. An affidavit of Mr Clark sworn 5 July 2019 was read in support of the notice of motion. The affidavit largely contained submissions to the effect that as the Class 4 proceedings seek to nullify the CDC these proceedings will not be necessary should the Class 1 proceedings be determined in the Respondent’s favour. The interlocutory order in force continues to apply to restrain material coming to the site and, with the consent orders made for sediment control works on 26 February 2019, provides sufficient protection until the Class 1 appeal is determined. The Respondent relies on the Class 1 appeal arising from a deemed refusal by the Council, the existence of the CDC and that the Council should act as a model litigant.

12. As best as I can understand Mr Clark’s written and oral submissions in addition to those in his affidavit summarised above, there have been relevant changes of circumstance justifying an order in the interest of the just, quick and cheap disposal of the overall matters in issue between the parties as follows:

1. The Class 1 appeal filed 22 March 2019 concerns the same matter the subject of the CDC being challenged in these Class 4 proceedings and its resolution will answer these Class 4 proceedings.

2. The Council had a statutory duty to consider the DA and has not done so.

3. The Council was ordered to send the applicant (here the Respondent) an invoice as the Council had allocated a payment made for this application improperly to another DA.

4. The Council has approved an erosion and sediment control plan approved by the Court in January 2019 and this has been certified by an independent certifier.

5. The interlocutory proceedings and orders allay any environmental concerns.

13. The Council opposes the making of the order sought as the application is grossly delayed, the same application was made and refused by the Court in November 2018 and there are no relevant changes of circumstance that justify the making of the order now. There are ongoing serious environmental concerns on the Council’s part about what is happening on the site.

Consideration

14. Under s 58(1)(a)(ii) of the Civil Procedure Act 2005 (CP Act), in deciding whether to make an order granting the stay of proceedings, the Court must act in accordance with the dictates of justice. In doing so the Court must have regard to ss 56 and 57 of the CP Act. Section 56 refers to the overriding purpose of the CP Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings. Section 57 outlines objects of case management.

15. The Court has power to adjourn matters in these circumstances under s 9.46(3) of the Environmental Planning and Assessment Act 1979 (EPA Act). The decision to do so is in the exercise of the Court’s discretion. The Respondent bears the onus of establishing why the Court should exercise its discretion to make the order sought in its notice of motion.

16. I agree with the Council’s submission that this application is badly delayed. The hearing dates in August 2019 were set down on 21 February 2019 and the Class 1 appeal required by the Court as a matter of procedure was filed 22 March 2019. No explanation for this delay was provided.

17. I note that apart from asserting that the Class 1 appeal deals with the CDC under challenge in these Class 4 proceedings no detail of why that is the case has been provided by Mr Clark. These Class 4 proceedings refer to the use of the site as a waste or resource management facility. The Class 1 appeal refers to DA55744 for a warehouse and distribution centre at the site. I am otherwise unaware of what the CDC concerns and what this DA concerns. It is very difficult to assess the assertion made by Mr Clark in the absence of more information. I am unable to find that the resolution of the Class 1 proceedings if in the Respondent’s favour will resolve these Class 4 proceedings.

18. An earlier application for the same relief was made last year and refused on 28 November 2018. The DA the subject of the Class 1 appeal had been filed by then, as part of an omnibus Class 1 appeal which included four DAs.

19. The other changes of circumstance relied on by Mr Clark are not relevant. Whether a change in payment was required of the Council by the Court in what I infer are Class 1 proceedings is irrelevant. That the Class 1 appeal 2019/90311 arises from a deemed refusal is also irrelevant.

20. The orders for remediation work to be undertaken by the Respondent sought by the Council in the Class 4 proceedings are substantial. The interlocutory order is temporary only and of limited scope. The Class 1 proceedings have been set down for hearing in March 2020, a number of months away. If the order in the notice of motion was granted there would be substantial delay in the finalisation of these proceedings.

21. Balancing all of these matters I do not consider the just, quick and cheap disposal of proceedings warrants the exercise of my discretion to make the order sought in the Respondent’s notice of motion. The notice of motion is dismissed.

Costs

22. The usual rule in Class 4 proceedings applies so that the unsuccessful Respondent should pay the Council’s costs of the notice of motion dated 5 July 2019.

23. The Council seeks its costs on an indemnity basis on the basis the notice of motion is an abuse of process.

24. The Respondent is unrepresented and, while unsuccessful, I do not consider the circumstances amount to an abuse of process. Costs are not awarded on an indemnity basis.

Orders

25. The Court orders:

1. The First Respondent’s notice of motion dated 5 July 2019 is dismissed.

2. The Applicant’s costs of the notice of motion dated 5 July 2019 are to be paid by the First Respondent.

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Decision last updated: 22 July 2019