Harvey Woodhouse v Michael Schembri & Anor; Harvey Woodhouse v Wyong Shire Council & Anor

[2007] NSWLEC 861

Land and Environment Court

of New South Wales

CITATION:

Harvey Woodhouse v Michael Schembri & Anor; Harvey Woodhouse v Wyong Shire Council & Anor [2007] NSWLEC 861

PARTIES:

11127 of 2007
APPLICANT
Harvey Woodhouse
RESPONDENT
Michael Schembri & Anor

10145 of 2005
APPLICANT
Harvey Woodhouse
RESPONDENT
Wyong Shire Council & Anor

FILE NUMBER(S):

11127 of 2007 and 10145 of 2005

CORAM:

Sheahan J

KEY ISSUES:

Section 96 Modification :- objector appeal against Council's determination on modification of a court granted consent. Requirement for leave of the Court (s.96AA(4)).

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s96AA
Land and Environment Court Act 1979, s38(1)

CASES CITED:

Woodhouse v Wyong Shire Council & Ors [2005] NSWLEC 709;
Woodhouse v Wyong Shire Council & Ors (No.2) [2006] NSWLEC 83

DATES OF HEARING:

14 December 2007

EX TEMPORE JUDGMENT DATE:

14 December 2007

LEGAL REPRESENTATIVES:

11127 of 2007
APPLICANT
Ms J Reid, Solicitor of
Pike Pike & Fenwick

FIRST RESPONDENT
Mr M Staunton

SECOND RESPONDENT
Mr J Reilly, Solicitor of
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

14 December 2007

11127 of 2007 Harvey Woodhouse v Michael Schembri & Anor

10145 of 2005 Harvey Woodhouse v Wyong Shire Council & Anor

EXTEMPORE JUDGMENT

1 His Honour: In matter No. 10145 of 2005, Cowdroy J, with the assistance of Brown C, heard an appeal by Mr Woodhouse against the Council’s decision in February 2005 to approve the reconfiguration and upgrading of a poultry operation conducted by Mr & Mrs Schembri, and also the subdivision of some associated land.

2 Mr Woodhouse at all material times has owned land adjoining the subject land on all sides and enjoyed standing, as the subject development was designated development.

3 The relevant judgments of the Court were delivered on 22 December 2005 (Woodhouse v Wyong Shire Council & Ors [2005] NSWLEC 709) and on 24 February 2006 (Woodhouse v Wyong Shire Council & Ors (No.2) [2006] NSWLEC 83).

4 The hearing occupied four days. The final outcome was dismissal of Mr Woodhouse’s appeal and approval of a reduced project, on detailed conditions, including deferred commencement.

5 Relevantly, five naturally ventilated poultry sheds are to be replaced by 4 tunnel ventilated sheds; there is to be a strict limitation on the number of birds, in order to deal with concerns as to odour and noise; and the development as approved was to be staged over 30 months so the poultry operation could continue to operate.

6 Mr & Mrs Schembri made a s.96 modification application to the Council on or about 10 July 2007, relevantly seeking, inter alia, amendment of Condition #1 to extend the transitional period to 60 months, and to change the order in which the new sheds are to be built and the old ones decommissioned.

7 Mr Woodhouse made a submission opposing the s.96 application, but the Council determined, inter alia, those two issues of concern to him contrary to his position. In the Court file is a copy of the Schembri application, and Exhibit S1 and Exhibit S2 which explain the Council’s position on the matter.

8 Mr Woodhouse’s objection is dealt with in the Council papers. The Council officers’ report claims that “noise and odour were not specifically raised by any of the objectors as a reason for not extending the timeframe”, and that “the objector” (in the singular, presumably Mr Woodhouse) “claimed that the new timetable fails to provide the same level of balance and certainty as the current approval”.

9 Mr Woodhouse has been at all material times represented by senior and experienced legal advisors, who lodged on 7 November 2007 a Class 1 application, which became Matter No. 07/11127, seeking to appeal the Council’s decision. That document was filed within 28 days of Council’s notification of its determination.

10 The problem now before the Court is that s.96AA(4) of the Environmental Planning & Assessment Act 1979 requires that this Court grant leave for the objector appeal to be brought in these circumstances.

11 For the record, I will quote in full s.96AA(4), which says:

“A person who made a submission in respect of the application for modification and who is dissatisfied with the determination of the application by the consent authority may, in accordance with rules of court, apply to the Court for leave to appeal against the determination within 28 days after the date on which notice of the determination was given to the person and the Court may grant or refuse leave to appeal”.

12 There is no question that Mr Woodhouse “made a submission”. There is no question that he “is dissatisfied”. However, there are no specific “rules of court” to cover precisely these circumstances, and no one in the courtroom can find any case to rely upon as a guide for how to proceed.

13 The Class 1 application clearly describes the matter as an “Appeal … under s.96AA”, but does not address the statutory requirement for leave.

14 Nonetheless, I am satisfied that it was filed, and accepted by the Registry, both in good faith and with due process. It annexed relevant documents and began its course in Class 1. It was served, and an appearance has been filed by the solicitors for the Council.

15 If it is accepted as an appropriate way to put the s.96AA(4) process in train, it is “within time”, and, if I grant the necessary leave, it causes neither the Schembris nor the Council any prejudice, provided that I do not open the way for Mr Woodhouse to widen his claim or objection beyond the two matters of time and sequence.

16 The question of needing a Notice of Motion in some more strict form in order for the question of leave to be determined appears to have been first raised on either or both of 6 and 10 December, both dates relevantly outside the statutory 28 day period, and that question was referred to the Registrar yesterday, and to me as Duty Judge today.

17 A Notice of Motion for leave was filed in the Registrar’s callover yesterday, and the issue has been argued at length before me today, the proponent of the project being represented by counsel.

18 Mr Woodhouse’s solicitor relies on the wording and spirit of s.38(1) of the Court Act and various benevolent provisions of the Rules of this Court and the Supreme Court.

19 I am satisfied that the interests of justice, as they concern all three of the parties involved, and the spirit of the Court’s legislation, and of the planning legislation, regarding, in particular, the rights of objectors to be heard in cases of designated development, dictate that I should exercise the Court’s discretion and accept that, in filing his Class 1 application within the statutory time, Mr Woodhouse complied with the need to get his claim before the Court, so that all aspects, including formal granting of leave, could be decided.

20 Leave is granted for Mr Woodhouse to prosecute his appeal in Matter 11127 of 2007.

21 The matter is referred back to the Registrar for the usual case management, and should be included in the Registrar’s list for Wednesday 19 December 2007.

22 The exhibits are returned to Counsel for Mr & Mrs Schembri.