De Battista v The Minister for Planning and Environment

[2018] NSWLEC 30

Land and Environment Court

New South Wales

Medium Neutral Citation:	De Battista v The Minister for Planning and Environment [2018] NSWLEC 30
Hearing dates:	7 and 8 March 2018
Date of orders:	08 March 2018
Decision date:	08 March 2018
Jurisdiction:	Class 4
Before:	Moore J
Decision:	At [6]-[9]
Catchwords:	ADJOURNMENT APPLICATION - application to vacate hearing - late provision of documents and affidavits to applicant by the Council - proposal by Applicant to consider whether leave should be sought to amend pleadings - time to examine late documents appropriate - hearing vacated and adjournment granted
Category:	Procedural and other rulings
Parties:	David De Battista (Applicant) Minister for Planning and Environment (First Respondent) Shoalhaven City Council (Second Respondent)
Representation:	Counsel: Mr P Tomasetti SC/Ms A Hemmings, barrister (Applicant) Ms L Sims, solicitor (First Respondent) Mr P Clay SC/Ms F Berglund, barrister (Second Respondent)   Solicitors: Planning Law Solutions (Applicant) Department of Planning and Environment (First Respondent) Bradley Allen Love (Second Respondent)
File Number(s):	387827 of 2017
Publication restriction:	No

EX TEMPORE Judgment

1. HIS HONOUR: On the application by the legal representatives of Mr De Battista for the adjournment of the substantive Class 4 proceedings in order to contemplate seeking a further amendment to the Summons that is the basis for the present proceedings, I was taken to two versions of two documents that were important, and arguably fundamental, to the determination to make the Gateway Determination.  They were a report prepared for, and under the instructions of, Shoalhaven City Council (the Council) by a consultancy known as Walsh & Monaghan and a second report by a body known as “Atlas Urban”.  Each of those documents, relevantly for the present limited purposes that I have considered them, was before me in a form that was the form that was provided in support of the Gateway Determination and was also in a form that was a precursor form in each instance.

2. Mr Tomasetti SC, counsel for the Applicant, for the purposes of the adjournment application, has taken me to significant differences between each of the versions of both of the reports.  I am satisfied that, on the basis of the differences between the two documents, and particularly with respect to:

• the Atlas Urban document;

• relevant correspondence between officers of the Council and the author of the report; and

• comments made by an officer of the Council on a version of the report that was provided back to the author of the Atlas Urban report

that there are significantly potentially available issues arising out of those differences to warrant Mr De Battista's legal representatives having a further opportunity to consider what amendments to the pleadings, if any, are ones for which they would wish to seek leave to found a different or varied basis for the proceedings to go to substantive hearing.

3. In providing these short reasons, I am not to be taken to be expressing any view, tentative or otherwise, as to any conclusion that should be drawn from those differences, and nor am I to be taken to be expressing such views or considering those documents in any fashion as would make me part-heard on the merits of the application.

4. Mr Tomasetti correctly draws my attention to the fact that one of the significantly relevant documents leading to me reaching this conclusion, namely, the annotated copy of the Atlas Urban’s report, was not made available to Mr De Battista's legal advisers until 28 February 2018.

5. In addition, two affidavits proposed to be relied upon by the Council, which were made available to me for the purposes of the adjournment application only (from a person associated with the Walsh & Monaghan and another with the Atlas Urban reports) and are dated 4 and 5 March 2018, being immediately prior to the date of these hearings.  That temporal proximity to the hearing reinforces the reasons why I consider it is appropriate to vacate the hearing dates and to provide a further comparatively modest period within which Mr De Battista's legal representatives can contemplate what further procedural steps they might wish to make.

6. As a consequence, I vacate the hearing dates.

7. In doing so, I note the continuation of the undertaking proffered by the Council earlier in the proceedings and that that undertaking remains valid until the completion of the Class 4 hearing.

8. I reserve costs of the application for an adjournment.

9. I stand the matter over before the List Judge on 16 March 2018.

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