Joint Venture Pty Ltd v Mid-Coast Council

[2020] NSWLEC 1440

Land and Environment Court

New South Wales

Medium Neutral Citation:

Joint Venture Pty Ltd v Mid-Coast Council [2020] NSWLEC 1440

Hearing dates:

2, 3, 4 and 7 September 2020

Date of orders:

07 September 2020

Decision date:

07 September 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is refused.

Catchwords:

PROCEDURE – Notice of Motion – leave sought for amended plans and to amend the development application – objected to by the Respondent – Leave refused

Legislation Cited:

Civil Procedure Act 2005

Environmental Planning and Assessment Act 1979

Texts Cited:

Land and Environment Court of New South Wales Practice Note – Class 1 Development Appeals

Category:

Procedural and other rulings

Parties:

Joint Venture Pty Ltd (Applicant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
T Robertson SC (Applicant)
H Irish (Respondent)

Solicitors:
Long Legal (Applicant)
Local Government Legal (Respondent)

File Number(s):

2018/391717

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant, Joint Venture Pty Ltd, appeals to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) following the refusal of its development application (DA99/2019) by Mid-Coast Council. The development application seeks consent for the development of Lot 3 DP 242332, 303 Blackhead Road, Tallwoods for the purpose of a manufactured home estate.

2. The matter is part heard before me, listed to continue on 12 and 13 October 2020.

3. During the fourth day of the hearing the Applicant, through Mr Robertson, sought leave to amend their development application is response to evidence heard in the proceedings from the Arboricultural experts. The amendments principally sought to reduce cut or fill, or change finished surface levels, in proximity to trees identified to be retained by the Applicant. The amended plans also seek to correct an error in the plan drafting of the Community Centre in relation the entry to the building and reduce the extent of the community building in proximity to a retained tree.

4. Relevantly the Arboricultural experts had concluded their evidence and been excused by the Court at the close of the third day of the hearing.

5. At the time of dismissing the Applicant’s motion on 7 September 2020, I noted I would publish my oral reasons. Following a short outline of the statutory context, my reasons now follow.

6. Both Ms Irish and Mr Robertson made oral submissions in relation to the motion for amended plans. In determining the motion, I gave consideration to those submissions. Further, I gave weight to the obligations of the Court, the parties to legal proceedings and their legal representatives to assist the Court in achieving its overriding objective to facilitate the quick, just and cheap resolution of the issues in the proceedings in accordance with s 56 of the Civil Procedure Act 2005 (Civil Procedure Act), extracted below:

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.

…

7. Section 58 of the Civil Procedure is also relevant to the determination of the Applicant’s Notice of Motion, it states:

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.

8. A further relevant matter is the Court’s Practice Note – Class 1 Development Appeals.

Findings

9. In determining to dismiss the Notice of Motion for amended plans my reasoning is as follows:

1. I accept the submissions of Ms Irish that the Applicant has been on notice of the Respondent’s concerns in relation to the extent an uncertainty of the proposed civil works and the relationship between those works and the quantum of trees retained, as well as the feasibility of the nominated tree retention. I am persuaded that, as early as April 2019, the Statement of Facts and Contentions by the Respondent raised issue with the potential for earthworks to impact trees and sought additional detail of cut and fill works to clarify any such impact. In my view it is not the case that this is an issue that arose for the first time at the hearing. I am satisfied that the opportunity to address this contention at an earlier stage is a relevant matter under s 58(1)(b) of the Civil Procedure Act.

2. I accept that the motion for amendment to the development application results in prejudice to the Respondent, not least of all as the Respondent’s arborist has not provided evidence on the proposed amended plans, and the experts have been excused by the Court.

3. In effect the motion, and the grant of leave to amend, would result in the need to recall the Arboriculture experts, extending the time of the proceedings and incurring additional costs. This weighs against the grant of the Notice of Motion.

4. The cure of the Respondent’s prejudice would impact on the completion of the proceedings in the time allocated by the Court. This is contrary to the Court’s Practice Note – Class 1 Development Appeals at [92], and the practice of the Court to require the Applicant for development consent to provide the Court with a final, completed development application suitable for assessment at the commencement of the final hearing.

5. The onus is on the Applicant in seeking consent to ensure the practical effectiveness of their application and to ensure they understand and document the impacts of their development.

6. I accept that refusing leave to the Applicant to amend their application does result in some prejudice to the Applicant. However, I am not persuaded that in the circumstances granting leave to correct an error in the plan drafting of the Community Centre, or to ameliorate the impact arising from the cut and fill in proximity to vegetation proposed for retention, is appropriate. The relevant plans were drafted and prepared by the Applicant in support of their application. The onus is on the Applicant to ensure that separate plans from disparate disciplines which together form the development application are congruent and able to be implemented if the Court grants consent.

7. In balancing the fairness to the Applicant with the fairness to the Respondent, and the obligation at s 56(2) of the Civil Procedure Act, I am satisfied that the request of the Applicant to amend their development application should not be granted.

10. On balance, after considering the submissions of the parties, I am satisfied that to grant the leave requested is contrary to s 56 of the Civil Procedure Act which requires the court to facilitate the just cheap and quick disposal of the proceedings.

11. The orders of the Court are:

1. Leave is refused.

…………….

D M Dickson

Commissioner of the Court

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Decision last updated: 17 September 2020