Central Coast Council v 422 Pacific Highway Wyong Pty Ltd (No 2)

[2018] NSWLEC 97

Land and Environment Court

New South Wales

Medium Neutral Citation:	Central Coast Council v 422 Pacific Highway Wyong Pty Ltd (No 2) [2018] NSWLEC 97
Hearing dates:	22 June 2018
Date of orders:	22 June 2018
Decision date:	22 June 2018
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [11]
Catchwords:	PRACTICE AND PROCEDURE – works allegedly undertaken in accordance with complying development certificate – Council contends complying development certificate void and of no effect – leave sought to rely on amended summons – interlocutory orders sought
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 56, 57, 58
Cases Cited:	Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2018] NSWLEC 38
Category:	Procedural and other rulings
Parties:	Central Coast Council (Applicant) 422 Pacific Highway Wyong Pty Ltd A.C.N. 623 171 620 (First Respondent) Yialkin Shevket (Second Respondent) Ozel Shevket (Third Respondent) Arja Leena Jortikka (Fourth Respondent) Jarmo Kari Tapio Jortikka (Fifth Respondent) William A Dagger (Sixth Respondent)
Representation:	Counsel: T To (Applicant) R Clark, as agent (First Respondent)   Solicitors: Local Government Legal (Applicant)
File Number(s):	2018/00092915
Publication restriction:	No

EX TEMPORE Judgment

1. Presently before me as Duty Judge is a notice of motion filed 14 June 2018 brought by Central Coast Council (‘Council’) seeking leave to rely on an amended summons, interlocutory orders against the first and seventh respondents, and consequential orders relating to service of the amended summons. The seventh respondent is not currently a party to the proceedings but is identified in the draft amended summons attached to Council’s notice of motion.

2. The Class 4 proceedings to which the motion relates concern an application for judicial review brought by Council of a purported complying development certificate issued by the sixth respondent to the first respondent. In Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2018] NSWLEC 38, Moore J granted an interim injunction in relation to the development being carried out in purported reliance upon the certificate.

3. Subsequent to the orders of Moore J, the sixth respondent issued a second complying development certificate. The amended summons sought to be relied upon by Council challenges the validity of this second certificate, which was issued to the seventh respondent in relation to similar development on the same subject site.

4. At approximately 5.30pm, at the completion of a full day of hearing on the motion, Mr Richard Clark, who is the sole director of the first and seventh respondents and who appeared before the Court as agent, advised that each of the first and seventh respondents was prepared to enter an undertaking that the first and seventh respondents would not act upon either the first or second certificate in relation to the importation of fill material pending the outcome of the substantive proceedings. Mr Turvey To, counsel for Council, advised that in relation to the interlocutory relief sought, Council considered the undertaking acceptable. Therefore the undertaking had the consequence of rendering otiose the third order sought in the motion.

5. For the reasons that follow, I consider that it is appropriate to amend the summons and to make orders in accordance with the undertaking proffered by the first and seventh respondents. The effect of the amendment of the summons is to include Warnervale Employment Zone Pty Ltd A.C.N. 623 573 240 as the seventh respondent to the proceedings and to make amendments by the addition of pars 1A and 2A to the orders sought and some consequential and mainly grammatical changes to pars 1, 2, 3, 4 and 5, as noted in the amended summons which forms annexure “A” to the notice of motion. In addition, grounds of challenge to the second certificate are added.

6. In considering the proposed amendment to the summons, I am required to have regard to s 58 of the Civil Procedure Act 2005 (NSW) (‘CP Act’), which relevantly provides:

58 Court to follow dictates of justice

(1)   In deciding:

(a)   whether to make any order or direction for the management of proceedings, including:

(i)   any order for the amendment of a document…

…

the court must seek to act in accordance with the dictates of justice.

(2)   For the purpose of determining what are the dictates of justice in a particular case, the court:

(a) must have regard to the provisions of sections 56 and 57, and

(b)   may have regard to the following matters to the extent to which it considers them relevant:

(i)   the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii)   the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii)   the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v)   the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi)   the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii)   such other matters as the court considers relevant in the circumstances of the case.

7. Section 56 of the CP Act provides that the overriding purpose of the CPA Act and of rules of court is to provide for the “just, quick and cheap resolution of the real issues in the proceedings”. Section 57(1) provides the following further objects of case management:

…

(a)   the just determination of the proceedings,

(b)   the efficient disposal of the business of the court,

(c)   the efficient use of available judicial and administrative resources,

(d)   the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

8. I accept, having regard to the issues identified in the amended summons, the evidence before me, and the submissions of Council, that there is a proper question to be tried in relation to the validity of the second certificate. Given that the second certificate only came into being after the commencement of the proceedings, I consider that Council cannot be criticised for any delay in relation to seeking the relief sought in the amendments.

9. Whilst there was some discussion during the hearing as to whether concerns about the second certificate should have been dealt with by way of commencing new proceedings, I consider that given the commonality in the works sought to be restrained and the parties to the proceedings, it is appropriate having regard to the object of the just, quick and cheap resolution of the proceedings that the concerns be addressed by way of amendment.

10. Order 4 sought in the notice of motion was for the service of the orders to be effected upon the first and seventh respondents by way of email. In the circumstances of Mr Clark appearing in Court on behalf of both the first and seventh respondents, I dispense with the service of the amended summons on the first and seventh respondents and direct that the amended summons be served upon the other parties within 14 days.

Orders

11. The Court orders that:

1. Leave is granted to rely on the applicant’s amended summons annexed to the notice of motion filed 14 June 2018.

2. The amended summons is to be served upon each of the second, third, fourth, fifth and sixth respondents within 14 days of this order.

3. In accordance with the undertaking to the Court proffered by each of the first and seventh respondents, the Court orders that, until further order, the first and seventh respondents be bound by their undertaking in the following terms:

1. The first and seventh respondents undertake to the Court, by themselves, their servants and agents, to cease the importation of fill material to the land known as 422 and 450 Pacific Highway, Wyong.

4. The matter is stood over for further directions on Friday, 6 July 2018.

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Decision last updated: 25 June 2018