Glenayr Nominees Pty Ltd v Waverley Council

[2025] NSWLEC 51

Land and Environment Court

New South Wales

Medium Neutral Citation:

Glenayr Nominees Pty Ltd v Waverley Council [2025] NSWLEC 51

Hearing dates:

21 May 2025

Date of orders:

21 May 2025

Decision date:

21 May 2025

Jurisdiction:

Class 4

Before:

Beasley J

Decision:

(1) The hearing of the Class 4 proceedings (2023/00465545) on 16 to 18 June 2025 is vacated.

(2) Costs are reserved.

(3) That proceedings 2025/00191248 and 2023/00465545 be heard together, with evidence in one proceeding being evidence in the other.

(4) That pursuant to s 26(1) of the Civil Procedure Act 2005 (NSW), proceedings 2025/00191248 be referred to mediation together with the mediation currently on foot in proceedings 2023/00465545, being at 10am on 23 May 2025 before Acting Commissioner Peatman.

(5) That the matter be listed for a further directions hearing on 6 June 2025 for the parties to seek the usual directions for hearing.

Catchwords:

CIVIL PROCEDURE — Notice of motion to vacate hearing — related proceedings transferred from the Supreme Court of NSW to the Land and Environment Court of NSW

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 26(1), 56, 57, 58, 149B

Environmental Planning and Assessment Act 1979 (NSW), ss 5.5, 5.7

Category:

Procedural rulings

Parties:

Glenayr Nominees Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
R White (Applicant)
L Sims (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks (Respondent)

File Number(s):

2023/00465545

Publication restriction:

Nil

Ex Tempore JUDGMENT

1. Before me today are two related proceedings. Proceedings 2023/00465545 are Class 4 civil enforcement proceedings (the Class 4 proceedings) brought by Glenayr Nominees Pty Ltd (the Applicant) against Waverley Council (the Council) in relation to public domain works carried out by the Council and known as the “Seven Ways Upgrade Works” (the Works) along Warners Avenue, Bondi.

2. The Applicant is the owner of land known as 17 Warners Avenue, Bondi (the Site). The Works adjoin the front of the Site.

3. The Class 4 proceedings are centred around the Applicant’s claim that the Works have raised the levels of the public domain, and that this has caused flooding events at the Site.

4. By its Summons filed on 22 December 2023, the Applicant seeks, inter alia, a declaration that the Council has carried out the works in breach of ss 5.5 and/or 5.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), as well as rectification works.

5. As far as the procedural history of the Class 4 Proceedings is concerned, Amended Points of Defence were filed on 21 May 2024, expert evidence has been filed (including a joint report of hydrology experts), as well as other lay affidavit evidence. On 13 December 2024, the Class 4 proceedings were listed for mediation, and the matter was listed for hearing on 16 to 18 June 2025.

6. The mediation before Acting Commissioner Peatman took place on 24 February 2025, was adjourned to 9 April 2025, and has been adjourned again to recommence this Friday, 23 May 2025.

7. Before me today is a Notice of Motion filed on 16 May 2025, seeking an order that the hearing dates be vacated, and that the Class 4 proceedings be listed for further directions on Friday 6 June 2025. That motion, which is not opposed, is supported by an affidavit of Emma Kate Whitney affirmed 15 May 2025.

8. The orders sought in the Notice of Motion are to be considered in the following context, summarised in Ms Whitney’s affidavit:

1. On 27 February 2025, the Applicant commenced proceedings in the Supreme Court (the Nuisance proceedings) seeking, inter alia, the following relief:

(1) A Declaration [the Council] has been and continues to be guilty of a nuisance … in causing or allowing flood waters to discharge directly and indirectly onto [the Applicant’s] land…

(2) An order restraining [the Council] from causing or permitting flood waters to discharge onto [the Applicant’s] land so as to cause a nuisance.

(3) Order requiring [the Council] to undertake works to remove, or permit the removal of, any obstruction preventing flood waters from passing and flowing away from [the Applicant’s] land.

(4) Damages.

2. The Nuisance proceedings arise out of the same general facts as the Class 4 proceedings, and are based on similar evidence and assertions.

3. On 5 March 2025, the Applicant filed a Notice of Motion in the Supreme Court seeking an order that, pursuant to s 149B of the Civil Procedure Act 2005 (NSW), the Nuisance proceedings be transferred to this Court.

4. On 17 April 2025 Justice Cavanagh made orders transferring the Nuisance proceedings to the Class 4 jurisdiction of this Court. The Nuisance proceedings have now been transferred, and given file number 2025/00191248.

5. The Council agreed to the order that the Nuisance proceedings be transferred to this Court, but on the basis that the hearing date for the Class 4 proceedings be vacated. In an email from the Council’s solicitors to the Applicant’s solicitors, this was said to be because, in relation to the Nuisance proceedings, the Council would need more time to:

1. file a defence;

2. consider whether it was necessary to file any notices to produce or subpoenas;

3. file any further lay evidence; and

4. consider any valuation evidence filed by the Applicant and file any valuation evidence of its own: see the email dated 16 April 2025 at Annexure C to the affidavit of Ms Whitney.

9. I assume from the above that the parties consider it is convenient and appropriate for the Nuisance proceedings and the Class 4 proceedings to be heard together, and for evidence in one to be evidence in the other. Based on the material before me, I have also formed that view. I am also informed that as a result of the additional issues raised in the Nuisance proceedings, a longer period than three days would be needed for the hearing of the matters.

10. Based on the above, and taking into account ss 56 to 58 of the Civil Procedure Act 2005 (NSW), I consider that the Council’s stated position that it needs more time is reasonable, and that it is in the interests of justice to vacate the hearing dates of 16 to 18 June 2025 for the Class 4 proceedings. I note the adjourned mediation date of 23 May 2025, and I will list both matters together for further directions on Friday 6 June 2025, on which date (assuming the proceedings have not settled) the parties should have agreed an appropriate timetable (including for any further evidence and in accordance with the Class 4 practice note) and be ready to have the matters listed together for hearing. This is reflected in the short minutes of order handed to me this morning.

11. I make the following orders:

1. The hearing of the Class 4 proceedings (2023/00465545) on 16 to 18 June 2025 is vacated.

2. Costs are reserved.

3. That proceedings 2025/00191248 and 2023/00465545 be heard together, with evidence in one proceeding being evidence in the other.

4. That pursuant to s 26(1) of the Civil Procedure Act 2005 (NSW), proceedings 2025/00191248 be referred to mediation together with the mediation currently on foot in proceedings 2023/00465545, being at 10am on 23 May 2025 before Acting Commissioner Peatman.

5. That the matter be listed for a further directions hearing on 6 June 2025 for the parties to seek the usual directions for hearing.

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Decision last updated: 21 May 2025