Jomasa Pty Limited v City of Ryde Council

[2017] NSWLEC 1530

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jomasa Pty Limited v City of Ryde Council [2017] NSWLEC 1530
Hearing dates:	20 September 2017
Date of orders:	26 September 2017
Decision date:	26 September 2017
Jurisdiction:	Class 1
Before:	Registrar Froh
Decision:	(1) The applicant’s notice of motion is dismissed. (2) The proceedings are listed for a directions hearing before the Registrar on 5 October 2017. (3) The parties have liberty to restore on 3 days’ notice.
Catchwords:	EXPEDITION – whether expedition warranted – whether special factor exists – financial loss an inherent risk of development appeals
Legislation Cited:	Land and Environment Court Act 1979
Cases Cited:	BGY North Ryde Pty Limited v City of Ryde Council [2015] NSWLEC 1558 Greetings Oxford Koala Hotel Pty Limited v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 Wren Investments Pty Limited v Hunter [2011] NSWLEC 122
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Jomasa Pty Limited (Applicant) City of Ryde Council (Respondent)
Representation:	Counsel: Mr J Johnson (Applicant) Dr S Berveling (Respondent)     Solicitors: Madison Marcus Law Firm (Applicant) Council of the City of Ryde (Respondent)
File Number(s):	2017/272543
Publication restriction:	No

Judgment

1. This matter came before me on a Notice of Motion filed by the applicant seeking expedition of the Class 1 proceedings.

2. The application is opposed by the respondent.

3. In support of the application, the applicant relied on the following affidavits:

• Two affidavits sworn by Denis Hall on 7 September 2017 and 11 September 2017;

• the affidavit of Salvatore Navarra sworn on 7 September 2017;

• the affidavit of Noel Lucas-Martinez sworn on 11 September 2017; and

• the affidavit of Sharble Mahfoud sworn 19 September 2017 (filed by the respondent).

4. The respondent relied on the affidavit of Sharble Mahfoud sworn 19 September 2017.

5. It should be clarified that this matter is not strictly an application for expedition. Rather, the applicant is seeking hearing dates in October or November 2017, which in effect is an accelerated hearing date. In determining whether to accelerate the proceedings and grant a hearing date in the range being sought, I will consider whether expedition should be granted.

6. The land subject to the Class 1 proceedings is Lot 101 in DP 1037638, known as 146 Bowden Street, Meadowbank (‘the subject site’).

7. On 29 April 2009, the respondent granted development consent to development application LDA2008/0729 for a five storey residential flat building, consisting of 61 residential dwellings with 4 000m² of basement car parking (‘the Development Consent’).

8. The first condition of the Development Consent requires the development to be carried out in accordance with the approved plans, which include concept plans for stormwater drainage. The requirements of the stormwater drainage works are set out in condition 5 of the Development Consent. Condition 138 of the Development Consent requires an engineer to certify that the stormwater drainage works have been constructed in accordance with the approved plans prior to issuing an occupation certificate.

9. On 19 March 2014, the previous owners of the subject site executed a voluntary planning agreement (‘VPA’) with the respondent. Schedule 2, clause 1, Item 6 of the VPA requires the applicant to carry out:

“Contributions Works in the construction of part of the planned major stormwater drain and gross pollutant trap (on the extreme eastern edge of the site).”

10. These works are the same as those the subject of the Development Consent. Schedule 2, clause 2 of the VPA states that these contributions works, amongst other development contributions, must be delivered before the issue of an occupation certificate.

11. On 22 August 2017, the applicant provided the respondent with detailed engineering drawings for the stormwater drainage works pursuant to the VPA and Development Consent (‘Stormwater Works’).

12. On 31 August 2017, the respondent sent a letter to the applicant rejecting the proposed Stormwater Works.

13. On 7 September 2017, the applicant lodged Class 1 proceedings appealing the decision of the respondent in respect of the Stormwater Works, along with this Notice of Motion seeking expedition.

14. It is the uncontested evidence of the applicant that the residential dwellings on the subject site have been completed and are ready for occupation, with all fixtures, fittings and appliances installed. Of the 61 flats that have been built, approximately 30 flats have been sold off-the-plan.

15. Without an occupation certificate, the applicant cannot complete the off-the- plan contracts.

16. The sunset date under the off-the-plan contracts has already been extended three times in accordance with the contract and cannot be extended beyond 31 January 2018 (‘Final Sunset Clause’).

17. Counsel for both the applicant and respondent have helpfully drawn my attention to the decision of Pepper J in Wren Investments Pty Limited v Hunter [2011] NSWLEC 122 which quotes the decision of Young J in Greetings Oxford Koala Hotel Pty Limited v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 and the principles for expedition that decision sets out. For the purpose of these proceedings the relevant principles are as follows:

“(e) that the applicant is suffering hardship not caused through his own fault; [and]

…

(h) that there are large sums of money involved.”

18. It is the applicant’s uncontested evidence that the applicant is and will continue to suffer commercial hardship and, some purchasers who have bought units off-the-plan and sold their homes are being affected due to the delay in obtaining the occupation certificate.

19. In BGY North Ryde Pty Limited v City of Ryde Council [2015] NSWLEC 1558, Gray R (as she then was) considered an application to expedite proceedings which involved off-the-plan purchasers. In that case, the applicant had sold 650 residential apartments off-the-plan in reliance that approval would be forthcoming from Council. In considering this application Gray R stated at [25]:

“in moving to sell the apartments [off-the-plan], the applicant has taken a risk that may result in financial consequences. That is a risk that was open to the applicant to take, but it is not a matter that can then be used by the applicant to cause the Court to be compelled to expedite the proceedings.”

20. Whilst I accept that there are likely to be financial consequences for the applicant and those purchasers as a result of the proceedings not being expedited, I am of the view that such consequences are an inherent risk of a development of this nature and are not grounds which warrant expedition.

21. The applicant also made submissions that the development is of significant value to it, comprising $30 million in capital investment and approximately $90,000 per week in holding costs. Although I accept that the development involves sums of money that are of significance to the applicant, I do not accept that there is anything about the value of this development, or the sums of money involved that makes it more significant than other proceedings by developers before this Court.

22. Accordingly, I am of the view that there is no special factor that warrants expedition of the proceedings and I dismiss the applicant’s motion on that basis.

The orders of the Court are as follows:

1. The applicant’s notice of motion is dismissed.

2. The proceedings are listed for a directions hearing before the Registrar on 5 October 2017.

3. The parties have liberty to restore on 3 days’ notice.

…………………………….

Sarah Froh

Registrar

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Decision last updated: 26 September 2017