Klaric v Mosman Council(s96)

[2008] NSWLEC 1414

Land and Environment Court

of New South Wales

CITATION:

Klaric v Mosman Council(s96) [2008] NSWLEC 1414

PARTIES:

Applicant:
Robert and Leonie Klaric

Respondent:
Mosman Council

Interveners:
Robert and Kylie Clarke and Robert and Juliana Clemesha

FILE NUMBER(S):

11090 of 2006

CORAM:

Roseth SC

KEY ISSUES:

Section 96 Modification :- easement for operating crane

DATES OF HEARING:

1 July 2008, 9 October 2008, 10 October 2008, 24 October 2004 and 3 November 2008

 
DATE OF JUDGMENT: 

5 November 2008

LEGAL REPRESENTATIVES:

Applicant:
Mr M Staunton, barrister instructed by Mr T Flaherty, solicitor of Wilshire Webb Staunton

Respondent:
Ms J Hewitt and Mr J Merlino, solicitors of HWL Ebworth

Interveners:
Ms F Rourke, solicitor of Deacons and Mr S Ipp, barrister instructed by Mr J Grassi, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

5 November 2008

11090 of 2006(s96) Robert and Leonie Klaric v Mosman Municipal Council

Robert and Kylie Clarke and Robert and Juliana Clemesha (Interveners)

JUDGMENT

1 Senior Commissioner: This is an application to modify, pursuant to s96 of the Environmental Planning and Assessment Act 1979, the consent granted by this Court on 2 May 2007 to erect a dwelling house, a garage and an inclinator on lot B DP 115733, known as 69 Parriwi Road, Mosman. The only part of the amendment application over which there is dispute is that relating to the operation of the crane required for the construction of the proposal. According to the original consent, the construction required the crane to be located on the footpath between two adjoining properties, 67 and 71 Parriwi Road, and to swing over those properties. The owners of No 67, Mr and Mrs Clarke, and of No 71, Mr and Mrs Clemesha, are interveners in the appeal.

2 The applicant filed the amendment application on 29 November 2007. The application seeks to change the method of construction by re-locating the crane towards north, so that it swings over only one adjacent property, No 71, and over public land. On 22 April 2008 the appeal was the subject of a Conciliation Conference under s34 of the Land and Environment Court Act 1979. Since agreement was not reached, the conciliation process was terminated and two hearing days were allocated to the case.

3 The applicant was represented by Mr M Staunton, a barrister; the council was represented by Ms J Hewitt, a solicitor; and the interveners were represented by Ms F Rourke, a solicitor. On the first hearing day, 1 July 2008, the parties and the interveners indicated that they were negotiating, the negotiations had a high likelihood of success and requested, by consent, the Court to issue orders setting down a timetable for further progress of the matter. The timetable suggested to the Court for reaching agreement was in the order of six weeks. The orders required the parties to advise the Court by 5 August 2008 whether they have reached agreement. There followed several electronic communications with the Registry of the Court as well as personal appearances before, the Registrar: on 5 August, 14 August, 20 August, 26 August and 18 September 2008. Since no agreement had been reached by 18 September, the Court required the parties to appear before it on 9 October. The hearing on 9 October was followed by two further hearings on 10 October and 24 October 2008. On 24 October the parties indicated that they were still negotiating and that they were likely to reach agreement within a week. A further mention was set down for 3 November 2008 in the hope of disposing of the matter in a way that suited all parties. On that occasion the legal representative for Mr and Mrs Clemesha was Mr S Ipp. Ms F Rourke continued to represent Mr and Mrs Clarke.

4 The position of the various parties at the hearing on 3 November 2008 is as follows. The applicant presses for the approval of the s96 application. The council agrees to the approval since all its concerns have been satisfied. Mr and Mrs Clarke have no objection to the approval; however they wish an additional condition to be added to the council’s conditions of consent. Mr and Mrs Clemesha ask the Court to adjourn the case for three weeks to allow them to further negotiate with the applicant and/or put their case against the approval of the application.

5 What appears to be at issue between the Clemeshas and the applicant is the location of the crane. Yet, on 26 September 2008, Ms Rourke, who at that time represented the Clemeshas, advised the Court that

The location of the crane as shown in the amended Crane Application is now acceptable to the interveners.

6 Ms Rourke informs the Court that the Clemeshas changed their mind in relation to the location of the crane on 29 October 2008. This is after negotiations, which commenced on 22 April 2008 (the date of the s34 Conciliation Conference). I am aware that the interests of justice override those of efficiency and the Court’s desire to dispose of this matter is not the paramount issue to be considered in deciding the Clemeshas’ request for an adjournment. However, in this case the Court has provided so many opportunities for the parties to reach agreement and/or put their case to the Court that the likelihood of agreement, or alternatively of any new information being put to the Court, is close to zero. A further adjournment after six months of negotiations would serve no useful purpose. I therefore do not agree to adjourn the proceedings.

7 I am strengthened in the above conclusion by the fact that the applicant cannot operate the crane over the Clemeshas’ property without first obtaining an easement. That easement may be obtained either by agreement, or as a result of a Court order. If the Clemeshas still oppose the easement, they will be able to put their case before the Court at the hearing of the application for an easement.

8 I turn to the additional condition that Ms Rourke requests on behalf of Mr and Mrs Clarke. The condition would require the applicant to obtain the written agreement of the interveners before it can carry out any work. The applicant argues that the condition is unnecessary as the Construction Management Plan provides for much the same thing. Moreover, the applicant cannot carry out works over the interveners’ property without an easement. The council does not support the condition. I accept the applicant and council’s position. The condition is not imposed.

9 I have been provided with the following reports:

· Statement of Environmental Effects for the modification application;

· Tree report and assessment of the impact of the proposed crane pad;

· Geotechnical report;

· Construction Traffic Management Plan;

· Construction Management Plan;

· Join engineering expert report;

· Joint geotechnical experts’ report;

· Joint town planning experts’ report;

10 On the basis of the above plans and reports I am satisfied that the agreement between the council and the applicant is justified and that the application may be approved.

Orders

1. The s96 application to amend the consent, dated 2 May 2007, to erect a dwelling house, a garage and an inclinator on lot B DP 115733, known as 69 Parriwi Road, Mosman is approved subject to the conditions in Annexure A.

2. The exhibits are returned except Exhibits 1, A and B.

__________________
Dr John Roseth
Senior Commissioner