Dexus Funds Management Ltd v Blacktown City Council (No 2)

[2011] NSWLEC 247

Land and Environment Court

New South Wales

Medium Neutral Citation:

DEXUS Funds Management Ltd v Blacktown City Council (No 2) [2011] NSWLEC 247

Hearing dates:

16 November 2011

Decision date:

16 November 2011

Jurisdiction:

Class 4

Before:

Preston CJ

Decision:

The Court orders and directs:

1. The second respondent's Notice of Motion filed 10 November 2011 is dismissed.

2. The second respondent to pay the applicant's costs of the motion filed 10 November 2011.

3. By 4.00pm on 17 November 2011 the second respondent to file and serve its Amended Points of Defence.

4. Extend the time to 10.00am on 22 November 2011 for the applicant to file and serve an outline of submissions and issues for trial.

5. Extend the time to 12.00pm on 25 November 2011 for the second respondent to file and serve an outline of submissions and issues for trial.

Catchwords:

INTERLOCUTORY APPLICATION - judicial review proceedings challenging development consent - consent holder's notice of motion to vacate the judicial review hearing - consent holder recently commenced merit appeal against decision to grant consent - consent holder's notice of motion dismissed - consent holder to pay the applicant's costs of the motion.

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 83(2)(b), 97

Category:

Interlocutory applications

Parties:

DEXUS Funds Management Ltd (Applicant)
Blacktown City Council (First Respondent)
Plumpton Park Developments Pty Ltd (Second Respondent)

Representation:

Mr N A Hemmings QC (Applicant)
Ms A Pearman (Second Respondent)
Allens Arthur Robinson (Applicant)
Lindsay Taylor Lawyers (Submitting appearance) (First Respondent)
Eakin McCaffery Cox (Second Respondent)

File Number(s):

40430 of 2011

Judgment

1. Blacktown City Council granted development consent to a new shopping centre on land at Jersey Road, Plumpton, to the second respondent. The applicant owns and manages a shopping centre on adjoining land known as Plumpton Marketplace. A right of way burdens Plumpton Marketplace and benefits some but not all of the land on which the new shopping centre is to be erected.

1. The applicant brought judicial review proceedings in Class 4 of the Court's jurisdiction, challenging the validity of the council's determination to grant development consent. The grounds of challenge include that:

(a)   the council failed to properly consider, or inappropriately deferred its consideration of:

(i)   the traffic impacts of the development;

(ii)   the distribution of vehicles to and from the right of way;

(iii)   issues pertaining to contamination of the subject land;

(b)   as a consequence of the limited rights of access, the decision to approve the development application was manifestly unreasonable.

1. The applicant's proceedings have been listed for hearing on 28, 29 and 30 November 2011.

1. On 10 November 2011, the second respondent commenced an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the council's determination to grant development consent to the new shopping centre. The second respondent contends for the deletion or amendment of certain of the conditions of the development consent, relating to traffic, the right of way and contamination.

1. The second respondent has, by notice of motion, applied to vacate the hearing of the applicant's judicial review proceedings, and to have them adjourned until after the second respondent's Class 1 appeal has been heard and determined. The applicant opposes the second respondent's motion.

1. I am not persuaded that the hearing of the applicant's proceedings should be vacated, or should await the second respondent's recently commenced Class 1 appeal. My reasons are as follows.

1. First, the applicant's judicial review proceedings and the second respondent's Class 1 appeal have different foci. The applicant's proceedings are concerned with the legality of the council's exercise of power to grant development consent at the time of exercise, namely 9 February 2011. In the second respondent's appeal, however, the Court is concerned to determine what is the correct or preferable exercise of power to determine afresh the development application, at the time of and on the merits of the evidence adduced at the hearing of the appeal. The second respondent's appeal does not review the council's historical determination. Rather, the Court makes a fresh determination.

1. Secondly, the applicant is not a party to the second respondent's Class 1 appeal - the parties are the second respondent and the council. The applicant could apply to be joined to the second respondent's appeal but it could not raise its legal arguments as to the legality of the council's historical determination in that Class 1 appeal. It would need to argue on the merits as to the prospective determination of the Court. Hence, the second respondent's Class 1 appeal and the applicant's judicial review proceedings are not interchangeable, and the second respondent's Class 1 appeal will not resolve the applicant's judicial review challenges to the council's decision.

1. Thirdly, the resolution of the second respondent's Class 1 appeal, if determined in one way, might prejudice the applicant's claims in its judicial review proceedings. If the Court were minded in the Class 1 appeal to grant development consent to the new shopping centre, s 83(2)(b) of the EPA Act would have the effect of substituting the court's decision to grant consent for the council's decision to grant consent. This would remove the subject matter of the applicant's challenge in its judicial review proceedings.

1. Fourthly, if the applicant's challenge is successful, the council's determination to grant consent would be set aside. The council would then be able to reconsider and redetermine the development application of the second respondent. The second respondent can raise the concerns about the conditions of the council's consent that it has raised in its recently commenced Class 1 appeal. The council can consider these concerns. If the council determines the development application again in a way with which the second respondent is dissatisfied, the second respondent can appeal again under s 97 of the EPA Act to the Court.

1. Fifthly, the resolution of the applicant's judicial review proceedings may assist in any determination of the second respondent's development application and any subsequent Class 1 appeal, especially in relation to the right of way and the use of it by traffic.

1. Sixthly, I am not persuaded that the prior practice and procedure decisions of the Court in other cases, mostly concerned with the adjournment of Class 4 civil enforcement proceedings to restrain breaches of the EPA Act by carrying out development without obtaining the required development consent, to allow the person in breach to apply for and if necessary appeal to the Court in Class 1 for consent so as to remedy the breach, are applicable. There may be merit in the decisions in the circumstances of those cases but they are not directly relevant to the circumstances of this case.

1. Seventhly, the second respondent has delayed in commencing its Class 1 appeal. It only did so on 10 November 2011, less than three weeks before the final hearing of the applicant's judicial review proceedings. The second respondent's delay in seeking an adjournment and the cost consequences of an adjournment of the applicant's proceedings are discretionary grounds speaking against a vacation of the hearing of the applicant's proceedings.

1. For these reasons, the second respondent's notice of motion should be dismissed.

1. The applicant seeks its costs of the motion to vacate the proceedings. The motion is brought in the Class 4 proceedings. The ordinary rule in Class 4 proceedings is that costs follow the event. The event is that the second respondent has been unsuccessful and the applicant has been successful. Accordingly, the second respondent should pay the applicant's costs of the notice of motion.

1. The Court orders and directs:

1. The second respondent's Notice of Motion filed 10 November 2011 is dismissed.

2. The second respondent to pay the applicant's costs of the motion filed 10 November 2011.

3. By 4.00pm on 17 November 2011 the second respondent to file and serve its Amended Points of Defence.

4. Extend the time to 10.00am on 22 November 2011 for the applicant to file and serve an outline of submissions and issues for trial.

5. Extend the time to 12.00pm on 25 November 2011 for the second respondent to file and serve an outline of submissions and issues for trial.

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Decision last updated: 14 December 2011