Frevcourt Pty Ltd v Wingecarribee Shire Council (No. 2)

[2003] NSWLEC 304

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Land and Environment Court

of New South Wales

CITATION:

Frevcourt Pty Ltd and Ors v Wingecarribee Shire Council (No. 2) [2003] NSWLEC 304 revised - 1/12/2003

PARTIES:

FIRST APPLICANT
Frevcourt Pty Ltd (ACN 003 601 787)

SECOND APPLICANT
Pauline Rutar

THIRD APPLICANT
Lynton Kettle Constructions Pty Ltd (ACN 002 518 569)

RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S):

40176 of 2000

CORAM:

Cowdroy J

KEY ISSUES:

Practice and Procedure :- adjournment of proceedings - materials relevant to proceedings produced - party requiring more time to consider information

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 94
Supreme Court Rules 1970, Pt 72

CASES CITED:

DATES OF HEARING:

26/11/2001
28/11/2001

EX TEMPORE
JUDGMENT DATE :

11/28/2001

LEGAL REPRESENTATIVES:

FIRST APPLICANT
Mr J. Webster (Barrister)

SOLICITORS
Levy Peatman

SECOND APPLICANT
Mr J. Webster (Barrister)

SOLICITORS
Levy Peatman

THIRD APPLICANT
Mr J. Webster (Barrister)

SOLICITORS
Levy Peatman

RESPONDENT
Mr M. Tobias QC
Mr J. Ayling SC

SOLICITORS
B. Bilinsky & Co

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40176 of 2000

Cowdroy J

28 November 2001

Frevcourt Pty Ltd (ACN 003 601 787)

First Applicant

Pauline Rutar

Second Applicant

Lynton Kettle Constructions Pty Ltd (ACN 002 518 569)

Third Applicant

v

Wingecarribee Shire Council

Respondent

Judgment No.2

Introduction

1 The Court is required to adjudicate upon a matter of significant and fundamental importance relating to the operation of s 94 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

2 The hearing of these proceedings commenced on 26 November 2001, but was adjourned until today to enable the parties to agree upon various facts. The application for adjournment was made by the respondent because a substantial quantity of financial and accounting evidence relevant to the proceedings has become available. The Court granted the adjournment on the basis that the time thereby allowed might assist the parties to resolve matters of an accounting nature, thereby leaving the application of s 94 of the EP&A Act as the central issue for determination.

3 The period of the adjournment has proved inadequate. Wingecarribee Shire Council (“the respondent”) seeks a further adjournment of the matter and has submitted that, unless facts are agreed, the sheer volume of evidence now available would result in the allocated hearing time being exceeded. The respondent submits that it is simply not in a position to proceed at this stage.

4 The applicants oppose the application and point out the long history of this matter and of their application made on 6 November 2001 for various factual issues to be agreed prior to the hearing. That application was opposed by the respondent.

5 The Court is satisfied that an adjournment should be granted for various reasons. Firstly the Court is satisfied that it will be inefficient to permit this matter to proceed on disputed factual issues. It would be cumbersome and unproductive for various witnesses to be called and cross-examined on matters of a financial or accounting nature.

6 Secondly the Court is mindful of the significance of the issue raised by the applicants. Having perused the various authorities which are relied upon by the parties, it is apparent that none decide the precise issue which is to be determined in these proceedings. The authorities also establish that the entitlement to the relief sought does not arise merely because the objectives of the respondent’s plan made pursuant to s 94 of the EP&A Act have been abandoned.

7 Due to the importance of the question thus raised, the Court considers that the facts must be thoroughly investigated prior to the hearing. The Court is mindful of the substantial costs incurred in setting aside this week but these can be remedied by an order for costs. The Court does not consider it appropriate to make any order for costs at this stage because the Court will need to taken, in due course, to all of the facts which have led to the necessity for this adjournment.

Orders

8 The Court orders that:-

1. The proceedings be adjourned noting that no specific prejudice is caused to the applicants;

2. The parties approach the Registrar forthwith to obtain fresh hearing dates for the matter and in this respect, I am not to be regarded as necessarily part heard;

3. The adjournment is granted upon the understanding that the parties who are now present at Court will in the ensuing days consider the matters raised by the applicants in an endeavour to reach a concluded basis of agreed facts or agreed disagreement;

4. Liberty be granted to apply to the Court in the event that any further directions are required including the directions for the appointment of a Court appointed expert, to investigate and report to the Court pursuant to Pt 72 of the Supreme Court Rules 1970, on the issues which cannot be agreed between the parties.