Johnson v Lake Macquarie City Council [No. 2]

[1999] NSWLEC 189

Land and Environment Court

of New South Wales

CITATION:

Johnson v Lake Macquarie City Council and Anor [No. 2] [1999] NSWLEC 189

PARTIES

APPLICANT:
Ken Johnson

RESPONDENTS:
Lake Macquarie City Council and Anor

NUMBER:

40173 of 1995

CORAM:

Talbot J

KEY ISSUES:

Practice & Procedure :- Adjournment - no acceptable explanation for delay in application for legal aid - matter set down for several months - prospect of success considered

LEGISLATION CITED:

DATES OF HEARING:

05/31/1999

EX TEMPORE JUDGMENT DATE:

05/31/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Kelso (Solicitor)

SOLICITORS:
Taylor Kelso

FIRST RESPONDENT:
Mr I Hemmings (Barrister)

SOLICITORS:
Peter Rees

SECOND RESPONDENT:
N/A

JUDGMENT:

IN THE LAND AND Matter No. 40173 of 1995
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 31 May 1999

Ken Johnson
Applicant

v
Lake Macquarie City Council
First Respondent
Pulver Cooper Blackley Pty Ltd

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT


HIS HONOUR:

1. The matter remitted to the Land and Environment Court by the Court of Appeal following its decision on 22 September 1998, reported at (1998) 101 LGERA 76, has been set down for hearing over two days commencing this morning, following a series of interrogatory steps which commenced back in December 1998 and originally instigated by the applicant.

2. I have had the benefit of evidentiary material in the form of three affidavits. Firstly an affidavit of Peter John Kelso, sworn on 19 May 1999, which was read when an initial application was made for an adjournment by way of Notice of Motion on 26 May 1999; an affidavit sworn in the meantime on the 28 May 1999 by Mr Johnson, again in support of the application for adjournment; and finally an affidavit previously sworn by Mr Johnson in connection with an earlier Notice of Motion and filed by him on 1 February 1999. The latter affidavit was read by Mr Davison in support of a submission that he was then making to demonstrate that the second respondent had no further interest in the conduct of these proceedings and that that contention had the support of Mr Johnson.

3. Subsequently, during the course of discussions between the Bench and the Bar table while Mr Davison was making submissions, the solicitor for the first respondent contacted the solicitor for the second respondent who now appears. The second respondent seeks to be excused and to effectively make a submitting appearance in relation to the outstanding issue remitted by the Court of Appeal subject to any question as to costs in respect of which the second respondent seeks to be heard in due course.

4. On behalf of the council Mr Davison opposes the adjournment application. The underlying ground for the adjournment lies in the fact that the applicant has made an application for assistance from the Legal Aid Commission but to date has not been successful in obtaining that assistance. The purpose of the adjournment is to allow further time so that an opinion from a barrister, required by the Legal Aid Commission, can be obtained. The opinion is to be directed to the applicant's prospects of success in respect of the question which arises as to the effect of s 104A of the Environmental Planning and Assessment Act to be heard by this Court as directed by the Court of Appeal.

5. In that respect the evidence before the Court has not been taken any further since 26 May in that the prospect of obtaining the counsel's opinion that is required has not been foreshadowed in any definitive way. The evidence from Mr Kelso in that respect is equivocal and does not make it clear that any formal request by way of brief or otherwise has been made for the actual advice. There clearly has been some discussion with Mr Pickles of counsel, and Mr Kelso has expressed the reason for the adjournment as being that he obtain a short advice from Mr Pickles as to the applicant's prospects on the s 104A question, and then to make an appropriate application for legal aid, if that advice is favourable. The matter, as I said a moment ago, does not appear to have been taken any further since 26 May.

6. Mr Johnson clearly has a sincere commitment to achieving some remedy against the council and indeed the second respondent, and he is clearly a person who has a belief in the right of what he sees as being achieved by pursuing the litigation.

7. One of the issues that the Court has to take into account is whether or not an applicant for an adjournment will, if the application is refused, be deprived of an opportunity to pursue some legal right, or to protect some interest in the event that the application for an adjournment is refused. It is in accordance with established principle that where the prospect is that such a right might be lost, or an interest is unprotected, and the problems associated with the grounds for the adjournment can be overcome by granting the adjournment subject to a costs order, that an application for adjournment should be granted.

8. The history of the matter has been outlined before me. I have been able to determine from the public records that the council originally granted a consent to development application number 93/948. The application was declared invalid by Stein J in his judgment on 23 July 1996. Following the decision of the Court of Appeal, subject to the outstanding question, the consent granted by the council is not reinstated. The Court of Appeal determined that non-compliance with requirements of cl 59 of the Environmental Planning and Assessment Act Regulations in respect of the deferred commencement condition did not cause the development consent to lapse. However, the matter upon which the Court concentrated was whether or not the limitation provision in s 104A could be pleaded by way of an amended defence having regard to the history of the matter. The Court of Appeal held that it could. There was no appeal against Stein J’s finding in respect of the failure to comply with the notice provisions in cl 59 of the Regulation.

9. In the meantime Assessor Hussey granted a consent to the same development application on 11 June 1997. It appears therefore that irrespective of the outcome of what is left in these proceedings there will be at least the consent granted by this Court on 11 June 1997. There is a prospect that any perceived invalidity in the original grant of consent by the council will be protected by the advertisement said to be published pursuant to s 104A. Accordingly (and it will not be necessary for the Court to decide this at this stage except to the extent that it is relevant for the purposes of this adjournment application) it does not appear that the second respondent will be ultimately constrained by any court order which will prevent it from carrying out development pursuant to a development consent.

10. Mr Johnson, in the words of Mr Kelso, is pursuing these proceedings as a public interest litigant. He has no pecuniary or direct interest in the outcome of the proceedings otherwise. Whether or not he is protected from any costs order is an equivocal matter as it is not clear to the Court what is the exact nature of the application that he proposes to make to the Legal Aid Commission if and when the advice from Mr Pickles is forthcoming. There is little doubt, even if legal aid is forthcoming and Mr Johnson thereby gains some statutory protection from the impact of a costs order, at least to some extent, there is a real prospect that Mr Johnson will have difficulty in meeting a commitment to any order in respect of the costs thrown away. This is so even as Mr Kelso points out, they may not be as great as the costs of the actual hearing. However by the way things have materialised this morning it is unlikely to make a great deal of difference.

11. In all of the circumstances, and balancing the various interests, and having regard to the history of the matter since at least December last year, and particularly February of this year, the Court is of the opinion that it is not reasonable in the circumstances for the applicant to be granted the benefit of any adjournment beyond the days set aside for the hearing of this matter, namely today and tomorrow. That is particularly so in the absence of any further explanation of the steps taken in regard to the application to the Legal Aid Commission. The application for adjournment is refused.