Lane Cove Council v Ross (No 6)

[2013] NSWLEC 74

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lane Cove Council v Ross (No 6) [2013] NSWLEC 74

Hearing dates:

22 May 2013

Decision date:

29 May 2013

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

Notice of motion dismissed with costs.

Catchwords:

PRACTICE AND PROCEDURE: late application to vacate hearing dates - no reason given for delay in making application - application dismissed.

Legislation Cited:

Civil Procedure Act 2005, ss 56-60

Environmental Planning and Assessment Act 1979, ss 96, 124, 149F

Cases Cited:

ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Lane Cove Council v Ross [2012] NSWLEC 153

Lane Cove Council v Ross (No 2) [2012] NSWLEC 160

Lane Cove Council v Ross (No 3) [2012] NSWLEC 171

Lane Cove Council v Ross (No 4) [2012] NSWLEC 191

Lane Cove Council v Ross (No 5) [2013] NSWLEC 17

Ross v Lane Cove Council [2012] NSWLEC 1364

Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276

Category:

Interlocutory applications

Parties:

Lane Cove Council (Applicant)
Mr Raymond Ross (Respondent)

Representation:

Mr N Eastman (Applicant)
Mr R O'Gorman-Hughes (Respondent)
Pikes & Verekers Lawyers (Applicant)
N/A (Respondent)

File Number(s):

40628 of 2012

Ex Tempore Judgment

Mr Ross Applies Late for an Adjournment of Part-Heard Proceedings

1. On 22 May 2013, at 5:30pm, the Court heard an application by Mr Raymond Ross, the respondent in these proceedings, to adjourn part-heard proceedings due to commence on 27 May 2013. The proceedings were listed for three days. The part-heard matter was fixed for hearing on 20 March 2013. The application was opposed by the applicant in these proceedings, Lane Cove Council ("the council").

1. The background to the adjournment application is contained in a number of judgments before the Court (Lane Cove Council v Ross [2012] NSWLEC 153; Lane Cove Council v Ross (No 2) [2012] NSWLEC 160; Lane Cove Council v Ross (No 3) [2012] NSWLEC 171; Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 and Lane Cove Council v Ross (No 5) [2013] NSWLEC 17). For the sake of brevity and efficiency the detail contained in those judgments is not repeated here but is relied upon.

1. When the matter was listed for hearing on 20 March 2013, Mr Ross did not appear. This is so notwithstanding that he was in attendance on 27 February 2013, when the matter was relisted for further directions on 20 March 2013.

1. On 20 March 2013, Ms Benn attended the Court. Ms Benn appeared for what she claimed was the new owner of the property the subject of the unlawful development, Ms Hadia Edilbi. Ms Benn informed the Court that Ms Edilbi was the new owner/builder of the development the subject of these Class 4 proceedings and that she held an equitable interest in the property. Ms Benn was careful to state that she did not appear for Mr Ross.

1. Ms Benn sought an adjournment of the proceedings for two weeks so that Ms Edilbi could instruct her as to any application to join the proceedings as a party. On the basis that Ms Benn did not appear for a party in the proceedings and did not, at that stage, have instructions to make an application to join Ms Edilbi, the application was refused and a timetable was made for the preparation of the matter for hearing.

1. That timetable included, in addition to fixing the part-heard matter for hearing for three days in May, an order that Mr Ross was to file and serve his evidence and written submissions by 3 May 2013. The order has not been complied with. Liberty to restore on 48 hours notice was also ordered. At no point has Mr Ross sought to avail himself of this liberty prior to the filing of the notice of motion to adjourn the part-heard proceedings.

1. The application for the adjournment was argued in full and concluded at approximately 7pm. Due to the late hour, and the impending annual Land and Environment Court Conference held out of Sydney on 23 and 24 May 2013, the briefest of reasons were given by me in dismissing the application, with the promise of more fulsome reasons to follow. These are those reasons.

Class 1 Appeal Before Commissioner Dixon

1. While the present Class 4 proceedings have been pending before the Court, Class 1 proceedings were heard before by Dixon C (Ross v Lane Cove Council [2012] NSWLEC 1364). As will be apparent, it is necessary to explain what occurred in those proceedings in some detail.

1. In those proceedings, Mr Ross sought approval to modify the consent the subject of these Class 4 proceedings (DA 325/07, dated 2 April 2008) pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("the EPAA"). The modification application was referred to the council's Independent Hearing and Assessment Panel ("the IHAP") for determination. The application was refused by the IHAP on 2 October 2012. It was the appeal against that refusal that was determined by Dixon C.

1. The only real issue in the proceedings before the Commissioner, following an amendment of the plans pursuant to conciliation, was the removal of a balcony over an excavated garage leading to a new living room. The threshold legal issue before the Commissioner was whether the development was substantially the same as that originally approved if the modifications were permitted. The Commissioner accepted that it was substantially the same as that originally approved. Accordingly, she went on to determine the merits of the appeal. On the evidence before her, she was inclined the permit the balcony to remain. This was, however, dependent upon awnings that added bulk to the development being deleted as was anticipated during the course of the hearing before her. Mr Ross had agreed to the removal of those awnings.

1. At the conclusion of the hearing before the Commissioner it became apparent that Mr Ross was not the owner of the property. It was agreed that evidence of the registration of a transfer would crystallise his ownership. Mr Ross indicated in an affidavit sworn on 17 December 2012 in those proceedings, that he had a transfer of sale in his favour which had been stamped and that he was in a position to register the transfer within a period of six weeks. The Commissioner therefore adjourned the hearing for a period of six weeks to allow the preparation of the drawings and the requisite certification and registration of the transfer. However, these matters did not eventuate because ultimately Mr Ross discontinued the appeal when the matter resumed before the Court on 29 January 2013.

Evidence of Mr Ross

1. Mr Ross relied on an affidavit sworn by him on 20 May 2013. In addition, a notice of sale/transfer report with respect to the property at issue was admitted into evidence. This indicated that the previous owner of the property was Mr Ross and the new owner, as at 3 May 2013, was listed as Ms "Sarab Chami", not Ms Edilbi, as was previously represented to the Court by Ms Benn in March 2013.

1. In these proceedings, Ms Melissa Benn of Hurlstone Park Legal (which I infer was the same person who appeared before me on 20 March 2013) curiously appeared as the contact name for Mr Ross both on the affidavit upon which he relied in support of the application to adjourn the hearing dates and on the front cover of his submissions. Ms Benn has, however, never filed a notice of appearance on behalf of Mr Ross in these proceedings. She is not, as Mr Ross conceded, his solicitor for the purposes of the record.

1. Mr Ross' affidavit in effect stated the following:

(a) that his decision to apply for a modification of the consent was urged upon him by the council's lawyers. This was because it was the council's expressed view that the extent of the unlawful building works were such that a building certificate application would be rejected;

(b) this advice was misleading and erroneous because there is nothing in the EPAA which limits the extent of building work that can be the subject of an application for a building certificate;

(c) it was only at the hearing before the Commissioner that the council raised for the first time the contention that the proposed development would not be substantially the same as that which was approved by the council and this caught Mr Ross by surprise;

(d) shortly before the hearing before the Commissioner, Mr Ross became legally represented and through his counsel (Mr O'Gorman-Hughes) it was suggested that Mr Ross could lodge a development application to use the existing structure and complete the construction of the remainder in accordance with the plans the subject of the existing Class 1 appeal. This would enable a merit assessment of the whole dwelling to take place before the Court on the dates allocated to hear the Class 1 appeal. However, this proposal was "ignored" by the council;

(e) during the hearing of Mr Ross' Class 1 appeal, he became concerned that the Commissioner would not approve the application because she might accept the council's argument that the development as sought to be modified was not substantially the same as that for which consent had been originally granted. As a consequence, he amended the application to remove from it the awnings and spa. It was his intention that the awnings would be the subject of a separate building certificate application. His decision was vindicated insofar as, as Dixon C stated, the removal of the awnings as proposed was necessary to ensure that the development remain substantially the same as that originally approved (at [14]);

(f) when the proceedings resumed on 29 January 2013, Mr Ross appeared for himself and it was his understanding that Dixon C was going to require him to demolish the awnings upon the making of final orders. Mr Ross conceded, however, that the written judgment of the Commissioner never suggested this;

(g) the awnings were not part of the application because they were withdrawn from it. But as a consequence he has had no opportunity to make submissions on their retention. It is for this reason that he discontinued the appeal; and

(h) there has consequently never been any planning approval, nor a merit assessment, of the entire dwelling, including the awnings.

1. First, it was Mr Ross' submission that the council, by its conduct, first, in urging him to lodge a s 96 application, and second, by ignoring the proposed alternate course put forward by him to enable a full merit assessment of the entire dwelling to take place, misled him, and therefore, it would be unfair to continue with the part-heard Class 4 proceedings.

1. Second, he therefore submitted that it was appropriate that the entire dwelling be the subject of a merit review before the parties were put to the expense of, and the Court's resources were "wasted" on, further Class 4 proceedings to determine the appropriate relief consequent upon his earlier admitted breaches of the EPAA (see Ross (No 4)). The awnings were substantial structures which are extensions of the slabs at two levels. Removal would have significant structural implications for the rest of the building. The difficulties of removing the awnings have been indicated in two reports prepared by Mr Ross' structural engineer, Mr Nikolai Koloff, which have been served on the council but not filed.

1. Third, on 16 January 2013 a building certificate application to regularise the construction was lodged in Mr Ross' name at the request of the new owner/builder, Ms Hadia Edilbi. This application was refused by the council on 12 March 2013, and on 1 May 2013 Ms Edilbi appealed to the Court against that refusal. The appeal is listed for its first return date on 29 May 2013. Until the building certificate appeal is determined, the Court will not have had the opportunity of assessing the merits of the concrete awnings, and therefore the Court should, Mr Ross submitted, conduct a merit assessment of the awnings first, before resuming the Class 4 proceedings (see Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [115]-[117] and ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 at [35]).

1. Fourth, Mr Ross relied on the fact that he has not been able to afford legal representation throughout the entirety of the Class 1 and Class 4 proceedings.

The Application for an Adjournment Must be Refused

1. The principles governing this application to adjourn the part-heard Class 4 hearing and vacate the current hearing dates are contained within ss 56-60 of the Civil Procedure Act 2005 ("the CPA") (see also in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175).

1. Applying these principles, it is apparent that the application must be refused.

1. First, the application is made late without any real explanation for the delay in making it. The hearing dates were set down in March 2013. Almost two months has elapsed in the interim. Mr Ross has not explained why this application has been made so late, nor has he explained the delay in applying for a building certificate. Presumably the application for a building certificate could have been made by Ms Edilbi in November 2012. Mr Ross could have opposed the setting down of this matter for hearing in March 2013 on the basis of the foreshadowed building certificate application. Neither occurred.

1. Second, I note that Mr Ross did not attend the Court when the matter was set down for hearing. Mr Ross' explanation for his absence was that he believed that Ms Benn would be appearing for him on 20 March 2013. This is, however, wholly inconsistent with the explanation Ms Benn gave to the Court for seeking to stand the matter over for two weeks. It is also not consistent with the fact that there has never been any notice of appearance filed by Ms Benn to appear as Mr Ross' solicitor on the record. In any event, liberty to restore was granted to the parties when the matter was set down for hearing, and this has not been exercised by Mr Ross until, in effect, the eve of the resumed hearing.

1. Third, Mr Ross has already had an opportunity to have a merit assessment of the development. It was Mr Ross' decision to exclude the awnings from the consideration before the Commissioner. While his reasons for doing so were logical, it nevertheless remained his decision. The cases relied upon by Mr Ross may be distinguished on this basis. It was also Mr Ross' decision to discontinue those proceedings.

1. Fourth, I do not accept, without more, that the council misled Mr Ross in its dealings with him. In any event, Mr Ross could have, at any time, lodged an application for a building certificate. I note, in this regard, that the appeal against the council's refusal to issue a building certificate has only recently been filed notwithstanding that the refusal occurred in March 2013.

1. Fifth, this Court has a broad discretion under s 149F of the EPAA to grant relief in an appeal against the refusal of the council to issue a building certificate, just as it does to grant relief in these proceedings under s 124 of the EPAA. Whatever arguments Mr Ross may seek to make in an appeal pursuant to s 149F of the EPAA, can therefore also be made during the hearing of these Class 4 proceedings. Thus it is entirely conceivable that the drastic remedy of demolition and reinstatement that the council seeks in these proceedings will not, once the Court has heard all of the evidence in this matter, be granted and in lieu thereof, some other form of relief may be ordered permitting the retention of some or all of the unlawful development, including the awnings.

1. Sixth, Mr Ross has not filed any evidence in accordance with the 20 March 2013 timetable for the preparation of the imminent Class 4 hearing. The almost irresistible inference is that this application, made on the cusp of the resumed hearing, has been brought in order to avoid the potential adverse consequences of his failure to comply with that timetable.

1. Seventh, the fact that Mr Ross has, at various times during the Class 4 and Class 1 proceedings, been unrepresented does not warrant the adjournment of the Class 4 proceedings. Mr Ross has had ample time to prepare for next week's hearing, even taking into account his previously unrepresented circumstances.

1. In short, the council is ready to proceed. It has filed its evidence and submissions in this matter. And, to reiterate, anything that could be put to support the merits of the issuing of a building certificate in respect of the development can equally be put by Mr Ross in these proceedings in order to craft a different form of relief to that which the council seeks. Although it may be presumed that Mr Ross will suffer prejudice if the hearing is not vacated, by reason of his failure to file any evidence to date concerning the appropriate relief to be granted in these proceedings, this has been brought about by Mr Ross' own inaction, and not through the fault of the council, as he suggests.

Orders

1. The notice of motion is dismissed. Mr Ross is to pay the council's costs of the motion. The exhibits are to be returned.

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Decision last updated: 04 June 2013