E J Cooper and Son Pty Limited v Baulkham Hills Shire Council

[2003] NSWLEC 385

>

Land and Environment Court

of New South Wales

CITATION:	E J Cooper & Son Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 385
PARTIES:	E J Cooper & Son Pty Ltd (Appl) Baulkham Hills Shire Council (Resp)
FILE NUMBER(S):	30607 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Practice and Procedure :- Adjournment Change in council's position requiring alternative defence Failure to prepare alternative defence no basis to grant adjournment
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	8-12 December 2003
EX TEMPORE JUDGMENT DATE :	12/08/2003
LEGAL REPRESENTATIVES:	N Hemmings QC/C Leggat (Appl) Marsdens Law Group (Sol - Appl) M I Bozic SC/M S Henry (Resp) Matthews Folbigg Pty Ltd (Sol - Resp)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

30607/03

McCLELLAN J

MONDAY 8 DECEMBER 2003

E J COOPER & SON PTY LIMITED

Applicant
v

BAULKHAM HILLS SHIRE COUNCIL

Respondent

Judgment

(on application for adjournment)

Introduction

1 HIS HONOUR: This matter comes before the court this morning having been fixed for hearing on 9 September for hearing a week commencing today.

2 Senior Counsel for Baulkham Hills Shire Council, which resumed the subject land, makes an application for the proceedings to now be adjourned. The basis put forward for that application is that in recent days the council has discovered a letter from Sydney Water indicating that although it may previously have had an interest in some of this land for trunk drainage purposes it no longer requires it. Accordingly, it is submitted that the council must now accept that the zoning of the relevant land should be for residential purposes. As I understand it, that is the case which has always been advanced by the applicant.

3 It is submitted by the council that as a consequence of the change of position, although it may have been ready to cross-examine the applicant in relation to its case, it has not been able to formulate an alternative case for itself based upon the changed parameters.

4 I do not accept that this is a valid basis for an adjournment of these proceedings.

5 A valuation case must be litigated with an understanding of the case of the resuming authority and the case of the person whose land has been resumed. The proper preparation of such a case must involve consideration of the other party’s position and the preparation of an alternative case upon the assumption that the court finds some or the majority of the elements of the other party’s case to be correct.

6 In those circumstances the council should have prepared a case which was founded upon the applicant’s assumption as to the zoning, and should be in a position to put to the court the consequences which the council says flow in the event that the court accepted the applicant’s position.

7 The matter has been fixed for a week and the applicant will be required to commence the proceedings and advance its case. If, in the course of the proceedings, it becomes plain to me that by reason of the events which have occurred there is some real disadvantage to the council which it could not have avoided, I will reconsider whether part or all of the proceedings should be deferred. However, at this point I see no reason, based upon the argument put forward, why the case should not proceed today. I reject the application.

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