IRM Property Group (No. 2) Pty Ltd v Blacktown City Council

[2021] NSWLEC 1307

Land and Environment Court

New South Wales

Medium Neutral Citation:

IRM Property Group (No. 2) Pty Ltd v Blacktown City Council [2021] NSWLEC 1307

Hearing dates:

26 May 2021

Date of orders:

28 May 2021

Decision date:

28 May 2021

Jurisdiction:

Class 1

Before:

Bish C and Speers AC

Decision:

See orders at [22]

Catchwords:

PROCEDURE – notice of motion seeking leave to adjourn proceedings – motion dismissed

Legislation Cited:

Civil Procedure Act 2005, ss 56, 57, 58, 66

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 50

Land and Environment Court Act 1979, s38

State Environmental Planning Policy (Western Sydney Employment Area) 2009, cl 29

Cases Cited:

HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135

Category:

Principal judgment

Parties:

IRM Property Group (No. 2) Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
A Stafford (Applicant)
S Simington (Solicitor) (Respondent)

Solicitors:
King & Wood Mallesons (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2020/97606

Publication restriction:

No

JudgEment

1. The Applicant seeks the following orders by Notice of Motion, filed 25 May 2021 (‘the NoM’):

Short service and listing

1   That the Applicant be granted leave to serve this motion on the Respondent on 25 May 2021 or 26 May 2021.

2   That the motion be listed urgently before the Commissioners hearing the matter prior to 27 May 2021.

Substantive orders

3   The proceedings be adjourned to 22 June 2021.

4   Any other order that the Court sees fit.

2. For the reasons set out below, we have determined not to exercise discretion and make the orders sought by the Applicant.

Background

3. The hearing of the appeal, which is the subject of the NoM, was held on 16-18 February 2021, and then adjourned to allow the Applicant to file a Satisfactory Arrangement Certificate (SAC), which is required to grant consent.

4. The Applicant relies on three Affidavits of Mr Tom Naylor, (‘the Affidavits’), identified by Mr Stafford as: Affidavit one, dated 25 May 2021, Exhibit TN1; Affidavit two, dated 26 May 2021; and Affidavit three, dated 26 May 2021, Exhibit TN-A. In addition, Mr Stafford tendered a letter from the Department of Planning, Industry and Environment (DPIE), dated 26 May 2021.

5. The background to this matter, as relevant to the hearing of this NoM, is set out in Affidavit one and is relied upon in this judgement without further repetition. It is noted that the description of communications described in Exhibit TN-1 of Affidavit one are for the most part accepted as accurate, except the references at [10] and [15] which should refer to both Commissioners who heard the appeal. In addition, at [13], the statement should be expanded to explain that the Respondent did consent to the reopening of the hearing to tender the SAC, although does not consent to further submissions on conditions of consent.

6. We were assisted by the parties providing oral submissions and documents tendered by the Applicant.

The Applicant’s Position

7. In making its submission, the Applicant relies on the Affidavits and oral submission during the hearing of the motion. 

8. Mr Stafford advised the Court that the process to obtain the SAC has been long, costly and not without substantial effort. The process for the SAC started around May 2020, and to date the Applicant has been provided with a Voluntary Planning Agreement (VMP) and partial registration of land title. The issuance by the Secretary of the SAC is still pending. The recent letter from DPIE, dated 26 May 2021 indicates that the SAC will be available potentially by 22 June 2021.

9. The Applicant refers to Chief Justice Preston’s decision in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 (the HP judgement) which at [13]-[14] he granted a three month adjournment for the Applicant to provide a SAC, to satisfy the grant of consent.

The Respondent’s Position

10. Mr Simington made only a very brief oral submission to the Court during the hearing of the motion.

11. He states that the Respondent neither opposes nor consents to the orders sought in the Notice of Motion, although considers that the request for an adjournment has already been addressed by recent communications from the Court on 24 May 2021, which refused the adjournment.

Findings

12. The following provisions of the Civil Procedure Act 2005 (CP Act) are relevant to our determination on the Applicant’s NoM:

56 Overriding purpose (cf SCR Part 1, rule 3)

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

…

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

…

58 Court to follow dictates of justice

(1) In deciding—

(a) whether to make any order or direction for the management of proceedings, including—

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

…

66 Adjournment of proceedings (cf Act No 11 1970, section 75)

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

(2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time.

13. Section 38(1) of the Land and Environment Court Act (LEC Act) states that

Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

14. Clause 50 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) is relevant in consideration of the NoM, with regards to the requirement for all relevant information to accompany an application submitted for consideration by the consent authority:

50 How must a development application be made? (cf clause 46A of EP&A Regulation 1994)

(1) A development application must—

(a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and

(b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and

(c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and

(d) be lodged on the NSW planning portal.

15. It is accepted that a SAC is required by the consent authority to grant consent to the development application under appeal, pursuant to cl 29 of the State Environmental Planning Policy (Western Sydney Employment Area) 2009 (SEPP WSEA), described below:

29 Industrial Release Area—satisfactory arrangements for the provision of regional transport infrastructure and services

(1) This clause applies to the land shown edged heavy black on the Industrial Release Area Map, but does not apply to any such land if the whole or any part of it is in a special contributions area (as defined by section 7.1 of the Act).

(2) The object of this clause is to require assistance to authorities of the State towards the provision of regional transport infrastructure and services (including the Erskine Park Link Road Network) to satisfy needs that arise from development on land to which this clause applies.

(3) Despite any other provision of this Policy, the consent authority must not consent to development on land to which this clause applies unless the Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of regional transport infrastructure and services (including the Erskine Park Link Road Network) in relation to the land to which this Policy applies.

(4) Subclause (3) only applies if the land that is the subject of the application for development consent was not being used for industrial purposes immediately before the application was made.

(5) Subclause (3) does not apply in relation to—

(a) any land that is reserved exclusively for a public purpose, or

(b) any development that is, in the opinion of the consent authority, of a minor nature.

16. Having regard to the background to the proceedings and following consideration of the parties’ submissions, we have determined that it is not appropriate to grant the NoM sought by the Applicant for the following reasons:

1. The overriding purpose of the CP Act is directed to the quick, cheap and just resolution of the real issues in the proceedings. The Class 1 proceedings currently before the Court have been substantially heard. There is no new evidence that is required to be heard and no further submissions, only the filing of the SAC, which does not form part of the merit assessment required of the Court in its determination of the appeal. The SAC is a jurisdictional requirement to grant consent.

2. The Applicant has repeatedly requested further adjournments to provide the SAC, which, pursuant to cl 50 of the EPA Reg, was a requirement that should have been fulfilled before the appeal was heard by the Court.

3. By lodging the appeal against the deemed refusal of the development application by the Respondent in accordance with the provisions of s 8.7 of the EPA Act, the requirements of cl 50 of the EPA Reg were not satisfied. It is therefore the insufficiency of the supporting documents to the development application that is the focus of the proceedings. We are not persuaded that this omission on the part of the Applicant should be further indulged by the Court to the effect that the overall timeframe for the resolution of the appeal is further delayed.

17. We are satisfied that granting the NoM does not further the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. In forming this determination, we have considered the overriding purpose and objects identified in ss 56 and 57, and the dictates of justice as required by s 58 of the CP Act.

18. We are satisfied that further adjournment of the appeal would be contrary to the efficient use of judicial and administrative resources. The Court has already adjourned the hearing twice over a period of three months, at the request of the Applicant, to allow the provision of a document that should have rightly been provided to the Court when the appeal was lodged. Prior requests for adjournments made by the Applicant on 22 April 2021 and 24 May 2021 were submitted to the Court by email, and the Court made orders accordingly, with no opposition of the respondent. The Court ordered on 29 April 2021, a further adjournment to 24 May 2021, a date requested by the Applicant. The Court advised the parties on 24 May 2021 that the further request to adjourn the hearing to 25 June 2021 would be refused, which gave rise to the NoM heard before the Court today.

19. We accept that an adjournment to provide a SAC has been provided previously by the Court in other proceedings, such as described in the HP judgement. However, in consideration of the circumstances before the Court in this appeal, a further adjournment provides no certainty on the date of likely provision of the SAC, considering the previous multiple requests to adjourn. We accept that the DPIE has indicated a provisional date for the SAC of 22 June 2021. Despite this, the uncertainty for the Court in providing a timely decision for the proceedings on foot makes it unreasonable to continue to adjourn the hearing to address this particular issue.

20. In balancing the fairness to the Applicant, with the fairness to the Respondent and the Court, we are satisfied that the request of the Applicant to further adjourn the hearing, beyond what has already been granted, should not be accepted.

21. Having considered all the submissions put before the Court, on balance we are satisfied that the appropriate course of action to facilitate the quick, just and cheap resolution of the issues in the proceedings is for NoM to be dismissed.

Orders

22. The orders of the Court are:

1. The Applicant’s Notice of Motion filed on 25 May 2021 is dismissed.

…………………….

Sarah Bish

Commissioner of the Court

…………………….

Ross Speers

Acting Commissioner of the Court

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Decision last updated: 28 May 2021