Gameplan Sports and Leisure Pty Limited v South Sydney City Council

[2000] NSWLEC 268

Land and Environment Court

of New South Wales

CITATION:

Gameplan Sports and Leisure Pty Limited v South Sydney City Council [2000] NSWLEC 268

PARTIES:

APPLICANT
Gameplan Sports and Leisure Pty Limited

RESPONDENT
South Sydney City Council

FILE NUMBER(S):

10021 of 2000

CORAM:

Cowdroy J

KEY ISSUES:

Development :- Integrated development - heritage considerations - whether Court should entertain class one appear before grant of approval of Heritage Council of NSW

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Integrated development - heritage considerations - whether Court should entertain class one appear before grant of approval of Heritage Council of NSW

DATES OF HEARING:

31/10/00

DATE OF JUDGMENT:

10/31/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso (Barrister)

SOLICITORS
Mallesons Stephen Jaques

RESPONDENT
Ms E Rankin

SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10021 of 1996
CORAM: Cowdroy J
DECISION DATE: 31/10/00

Gameplan Sports and Leisure Pty Limited

Applicant

v

South Sydney City Council

Respondent

JUDGMENT

1. In this matter the applicant, (“Gameplan”) seeks to have the class one appeal to this Court re-listed for hearing. The matter has had a long history. On 18 August 2000 the New South Wales Court of Appeal refused leave to appeal from a decision of this Court relating to the issue of the requirement of consent from the Heritage Council (New South Wales) (“the Heritage Council”) to the proposed development and whether the development was integrated development.

2. Gameplan must obtain consent from this Court and the Heritage Council to enable the development to proceed. Gameplan must therefore make two applications to obtain the consent in respect of the development. The question now is whether the Court hearing should take place in the absence of any decision of the Heritage Council.

3. No application has yet been made by Gameplan to the Heritage Council, and in view of the fact that more than two months has elapsed since the decision of the New South Wales Court of Appeal without such application being made, it would appear that there is no question of urgency. Ms Ranken, who appears for the respondent council (“the council”), urges that the determination of the Heritage Council should be obtained prior to any hearing. It is submitted that if a hearing takes place, but thereafter the Heritage Council refuses consent, the costs of such hearing will be thrown away.

4. The Court is satisfied that in the unusual circumstances of this case any cost and expense could be rectified by an appropriate order for costs. Costs therefore is not a matter which poses any real obstacle to the matter proceeding at this stage.

5. There are, however, two other issues which the Court considers are important. The grant of consent by the Court is essential for the development. Such application will require consideration of numerous matters which encompass a wide range of issues as prescribed by s 79C(1) of the EP&A Act 1979. Such issues extend beyond the issue of heritage.

6. In addition, the conditions which the Heritage Council may impose may be inconsistent with those which the Court may impose. In the event that consent is granted by the Court subject to conditions, potential conflict may be created if there is any inconsistency with conditions which the Heritage Council might require.

7. The final matter for consideration is the question of whether the Court should embark upon a hearing in the knowledge that such litigation maybe fruitless if the Heritage Council refuses to give its permission.

8. The Court considers that the last two reasons, namely the potential for inconsistent conditions, and the fact that the hearing may be useless, are matters which mitigate against the hearing proceeding in priority to the determination by the Heritage Council.

9. For these reasons the Court dismisses the application by Gameplan for leave to approach the Registrar to obtain a hearing date.

Orders

10. The Court orders that:-

1. The proceedings be stood over generally.

2. Liberty is granted to either party to re-list the matter upon two days notice being given to the other party.