Ferguson v Leichhardt Council

[2003] NSWLEC 43

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Land and Environment Court

of New South Wales

CITATION:

Ferguson and Anor v Leichhardt Council [2003] NSWLEC 43

PARTIES:

APPLICANTS
Andrew Ferguson and Alessandro Gentilini

RESPONDENT
Leichhardt Council

FILE NUMBER(S):

(1)0186 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Practice and Procedure :- Vacation of hearing of contested building and planning appeal as the result of applicant seeking to rely on amended plans - Costs reserved.

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

13/01/2003

EX TEMPORE
JUDGMENT DATE :

01/13/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Ms M. Taylor (Solicitor)

SOLICITORS
Taylor Kelso Lawyers

RESPONDENT
Ms J. Reid (Solicitor)

SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0186 of 2002

Cowdroy J

13/01/2003

ANDREW FERGUSON & ALESSANDRO GENTILINI

Applicants
v

LEICHHART COUNCIL

Respondent

Judgment

1. The Court notes that there are valid reasons for the vacation of the hearing dates of this matter which is set down for 16 and 17 January 2003.

2. The applicants have indicated that they wish to rely upon amended plans to be prepared by an alternate architect. The amended plans may avoid any litigation between the parties. In this event, it would seem to be a waste of the parties’ money to have the matter heard in its present form. Accordingly, the Court grants the order sought, namely that the hearing dates of 16 and 17 January 2003 be vacated.

3. The Court notes that the respondent has prepared and filed its evidence in relation to the appeal as it is currently formulated. In the event that the appeal becomes unnecessary in consequence of amended plans, the respondent should be afforded the opportunity of at least making an application for the costs thrown away as a result of the applicants’ reliance on the amended plans.

4. Accordingly, the Court make the following orders.

1. The hearing dates of 16 and 17 January 2003 are vacated.

2. Either party be at liberty to apply to relist the matter as to the question of costs.

HIS HONOUR: Ms Taylor, that leaves a question as to what is to happen with the matter now. Should I simply refer it to the Registrar or is that too premature?

TAYLOR: I think if the callover could be about 29 January, some date like that, when plans are alleged to be available, we would all be in a better position to know what was to happen.

HIS HONOUR: What if I directed that the matter be placed in a callover, 29 January is only two weeks away, or thereabouts?

TAYLOR: Some time in first week of February then.

3. I direct that the matter be referred to the Registrar’s callover list on 5 February 2003.