Hyside Projects Subthree Pty Ltd v City of Canada Bay Council

[2021] NSWLEC 94

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hyside Projects Subthree Pty Ltd v City of Canada Bay Council [2021] NSWLEC 94
Hearing dates:	26 August 2021
Date of orders:	26 August 2021
Decision date:	26 August 2021
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [10]
Catchwords:	NOTICE TO PRODUCE - Class 1 appeal against deemed refusal of development application - Applicant serves Notice to Produce to the Court on the Respondent - Respondent owns land adjacent to the Applicant's development site - Development Control Plan (DCP) contains provisions concerning site consolidation - provisions identify the development site and the Respondent's land is desirable to be amalgamated - Applicant seeks documents concerning any past negotiations concerning the sale of the Respondent's land - Applicant also seeks production of documents concerning process leading to adoption of the DCP - Respondent seeks to have the Notice to Produce to the Court set aside on the basis that no legitimate forensic purpose has been established for either element - forensic purpose established the documents concerning past negotiations - paragraph permitted to stand - no forensic purpose established the documents concerning the process for adoption of the DCP - paragraph struck out
Legislation Cited:	Strathfield Triangle Development Control Plan
Cases Cited:	Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Category:	Procedural rulings
Parties:	Hyside Projects Subthree Pty Ltd (Applicant) City of Canada Bay Council (Respondent)
Representation:	Counsel: Mr T Hale SC (Applicant) Ms H Irish, barrister (Respondent) Solicitors: Fortislaw (Applicant) Hall & Wilcox Lawyers (Respondent)
File Number(s):	16794 of 2021
Publication restriction:	No

EXTEMPORE Judgment

1. HIS HONOUR: Hyside Projects Subthree Pty Ltd (the Company) has applied to the City of Canada Bay Council (the Council) for development consent to develop a site in an area known as the Strathfield Triangle. The Strathfield Triangle is an area in transition, transitioning from generally single‑level residential development to multi‑level, multi‑unit residential development. As part of that transition process, the Council has developed a specific development control plan, Strathfield Triangle Development Control Plan (the DCP), for the purpose of setting relevant controls for that urban renewal process. Part of the DCP, at Map 8, shows what is the Council’s aspiration for consolidation of sites within the Strathfield Triangle area.

2. To give effect to what is set out in that map, the DCP sets out, in Section 3.7, “Aims and controls for site amalgamation”. It is with respect to those controls arising in the context of the Company’s appeal to this Court, seeking approval for its proposed development, that I am asked to deal with a Notice of Motion filed on behalf of the Council on 20 August 2021 concerning a Notice to Produce to the Court issued by the Company on 9 August 2021. There are two elements in the Notice of Motion filed by the Council seeking to have the Notice to Produce to the Court set aside.

3. The Council seeks, with respect to the first element of the Notice to Produce, to have it narrowed so that it is confined to documents issued by the Council to the Company or entities related to the Company or documents issued by the Company and related entities of the Company to the Council between the period 16 April 2013 and 11 September 2020. I note, for present purposes, that the date of 11 September 2020 was the date of lodgement of the current development application with the Council, that being a date relevant for Control C2 in the site amalgamation provisions of the DCP.

4. The Council resists the breadth of what was proposed by paragraph 1 of the Company’s Notice to Produce to the Court. The narrowing that the Council seeks is to remove the commencement of the requirement to produce documents sought by the Company, which is June 2000 to 16 April 2013, that being when the DCP came into effect. The proposition that is advanced, in that regard, concerns Control C2 (which deals with negotiations between owners of properties and those of adjacent properties) - noting that, here, the adjacent, relevant property is owned by the Council (being a former public road known as Chapman Street - a road now closed and remaining in ownership of the Council).

5. Those negotiations, the Council says, are only relevant post the coming into effect of the DCP, and are only relevant for the purposes of Control C2 of the DCP to the extent that they relate to negotiations between the Council and the Company. That is the case advanced by Ms Irish on behalf of the Council with respect to that element of the Company’s Notice to Produce to the Court. Mr Hale SC, appearing for the Company, argues that it is appropriate that the longer period of time and the scope of the production is appropriate, as he put to me in response to a question from me, to prove a negative - that is, that there were no other negotiations between any other parties and the Council during the relevant period of time.

6. I am satisfied, for the purposes discussed most recently in a decision of the Court of Appeal, Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [71] and [72], where the President discusses the necessity for there to be an apparent relevance (in the broad sense of the term) of the documents sought to be subpoenaed (to be applied, relevantly here, to documents sought to be produced to the Court), that, if there is an absence of the apparent relevance of the documents, this may warrant a conclusion that there is a lack of forensic purpose.

7. I am satisfied that, on fine balance, the ability, for the purposes of Control C2 of Section 3.7 of the DCP, that the proof of the negative by the Company is a sufficient and legitimate forensic purpose for the Council to be obliged to satisfy the first paragraph of the Company’s Notice to Produce to the Court of 9 August 2021 in the terms set out in that paragraph.

8. The same cannot be said with respect to the second paragraph in the Notice to Produce. It seeks, in short-hand terms, to require the Council to produce documents that relate to the development of the DCP through the Council’s processes.

9. Whilst it is a confined seeking of such documents, in circumstances where the commissioner who will hear this matter in some two weeks' time is obliged to assess it in terms of the DCP as it exists at that date, I am not satisfied that there is any legitimate forensic purpose to be served by requiring the documents set out in paragraph 2 of the Notice to Produce. This is because matters relating to the development of the DCP within the Council’s internal processes do not evince any apparent relevant matter relating to issues in dispute between the parties (as set out in the Council’s Statement of Facts and Contentions in these proceedings) or in the documents in reply put by the Company.

10. It therefore follows that, with respect to the Council’s Notice of Motion of 20 August 2021, the orders of the Court are:

1. Proposed order (1a) to narrow the scope of the documents to be produced is refused; and

2. Proposed order (1b) to set aside paragraph 2 of the Notice to Produce is upheld, to the effect that paragraph 2 of the Notice to Produce is set aside.

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Decision last updated: 31 August 2021