Kirela Pty Limited v The Minister administering the Environmental Planning and Assessment Act 1979

[2004] NSWLEC 67

Land and Environment Court

of New South Wales

CITATION:

Kirela Pty Limited v The Minister administering the Environmental Planning and Assessment Act 1979 [2004] NSWLEC 67

PARTIES:

APPLICANT
Kirela Pty Limited (ACN 079 721 127)

RESPONDENT
The Minister administering the Environmental Planning and Assessment Act 1979

FILE NUMBER(S):

30088 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Compulsory Acquisition of Land :- written submission not received by a party - whether Court misled by error in submission

LEGISLATION CITED:

Land and Environment Court Rules 1996, Pt 15 r 9(d)

CASES CITED:

DATES OF HEARING:

04/03/2004

DATE OF JUDGMENT:

03/12/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Hale SC
Mr A. Galasso (Barrister)

SOLICITORS
Minter Ellison

RESPONDENT
Mr J. Webster SC

SOLICITORS
Blake Dawson Waldron

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

30088 of 2002

Cowdroy J

12 March 2004

Kirela Pty Limited (ACN 079 721 127)

Applicant
v

The Minister administering the Environmental Planning and Assessment Act 1979

Respondent

Judgment

1 By Notice of Motion dated 3 February 2004 the applicant applied to the Court pursuant to Part 15 rule 9(d) of the Land and Environment Court Rules 1996 to set aside Order 1 made in these proceedings on 29 August 2003. On 6 February 2004 such Order was set aside by consent.

2 The basis for the motion arises from a letter forwarded to the Court by Senior Counsel for the respondent dated 20 August 2003 in response to a question raised by the Court concerning a factual issue. The applicant claims that it did not receive a copy of the letter although the respondent maintains that it had been sent to the applicant.

3 The factual issue concerned the basis for the 71 units which was used in Option A relied upon by the respondent and referred to in Kirela Pty Limited v the Minister administering the Environmental Planning and Assessment Act 1979 [2003] NSWLEC 135 (“the judgment”) at par 151. The letter of 20 August 2003 relevantly stated:-

The DCP set a proposed density of 71 apartments on that site…

The site referred to was an adjoining site. In fact the statement was erroneous, as DCP 20 contained no such limitation. On this basis the applicant was understandably concerned that the Court, having found that DCP 20 would have applied to the subject land, was constrained to limit the potential development on the southern portion of the subject land to 71 units.

4 As is evident from the judgment, (see par 159, par 160, and par 170) the Court was satisfied that the controls provided by DCP 20 would have applied to the subject land had the compulsory acquisition not occurred. However it is also apparent that the Court did not consider that DCP 20 imposed a limitation of 71 units nor imposed a maximum number of units. The Court was mindful that the “Revised Parramatta Road Corridor Traffic Study” contained a recommendation that an adjacent parcel of land would be suitable for development for 71 units.

5 The Court rejected Mr Wynne’s hypothetical development model for the subject land and had before it two alternatives namely Option 2A and Option 2B. The Court considered that option 2A was the most realistic development proposal since it took into consideration the relevant site constraints. It did not adopt the respondent’s Option 2B as it considered it to be too conservative.

6 The applicant submits that the words “permitted” and “stipulated” in par 151 implied that the Court felt constrained by a non-existent limit of 71 units. Whilst these words, taken in conjunction with the letter of 20 August 2003 could reasonably give rise to that suggestion, the Court was aware that DCP 20 contained no such limit.

7 It follows that there is no basis for the Court to reconsider its decision.

Orders

8 The Court makes the following orders:-

1. ORDER that Order 1 of the judgment delivered on 29 August 2003 be reinstated;

2. ORDER that the Notice of Motion dated 3 February 2004 be dismissed;

3. ORDER that the costs of the motion be costs in the proceedings;

4. ORDER that the exhibits be returned.