Leeming v Pham

[2005] NSWLEC 332

Land and Environment Court

of New South Wales

CITATION:	Leeming v Pham and Others [2005] NSWLEC 332
PARTIES:	Mick Leeming and Alice Leeming Dinh Phuong Dung Pham Kiet Luu Liverpool City Council
FILE NUMBER(S):	40358 of 2005
CORAM:	Cowdroy J
KEY ISSUES:	Practice and Procedure :- expedition of hearing - whether hearing should be expedited - damage allegedly caused by respondents - whether sufficient evidence to justify expedition - whether applicants delayed in bringing proceedings
DATES OF HEARING:	02/05/2005
EX TEMPORE JUDGMENT DATE:	05/02/2005
LEGAL REPRESENTATIVES:	APPLICANT P Tomasetti FIRST AND SECOND RESPONDENTS C Norton THIRD RESPONDENT P Hudson (solicitor)

JUDGMENT:

- 3 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

2 May 2005

40358 of 2005

MICK LEEMING AND ALICE LEEMING
Applicants

DINH PHUONG DUNG PHAM
First Respondent

KIET LUU
Second Respondent

LIVERPOOL CITY COUNCIL
Third Respondent

JUDGMENT

Facts

1 Cowdroy J: Before the Court is a notice of motion seeking expedition of these proceedings. The notice of motion was filed on 15 April 2005, being the same day on which the Class 4 Application was filed.

2 The notice of motion is supported by an affidavit of Maysaa Sayed, sworn on 18 April 2005. The affidavit refers to the development carried out by the First Respondent pursuant to development consent no 63/04 (“the Consent”) granted by the Third Respondent (“the Council”) on 13 October 2003 for a spray painting facility.

3 Following the grant of the consent the First Respondent installed a spray painting booth in the premises known as 5/52 Riverside Road Chipping Norton, otherwise known as lot 5 in strata plan 37762 and erected a chimney for the purpose of the exhaust of fumes from the booth.

4 Subsequent to the grant of consent the Council realised that development application no 63/04 had not been accompanied by the consent of the Owners Corporation of Strata Plan 37762. Accordingly the Council instituted proceedings to revoke the consent. Such proceedings resulted in no order being made. As a consequence the Council notified the Applicants (“the notification”) on 22 March 2005 that it would not be instituting further proceedings against the Respondents. The Applicants commenced these proceedings following the notification.

5 The affidavit of Ms Sayed refers to various inconveniences allegedly caused by the operations of the spray painting activity. The affidavit also refers to the need for approval of the Body Corporate for development application no 63/04.

6 The First Respondent and the Second Respondent challenge the application for expedition, submitting that there is no demonstrable urgency as evidenced by the delay in bringing the proceedings. Secondly, the Respondents deny that the original consent required the approval of the Body Corporate. Thirdly, the respondents submit that because of other proceedings currently before a Tribunal, the Body Corporate may be ordered to provide its consent to a fresh development application which is being made without prejudice to the Respondents’ existing rights. For these reasons the Respondents submit that the Court pursuant to s 124 of the Environmental Planning and Assessment Act 1979 should adjourn any hearing pending the result of the fresh development application being made to the Council.

Findings

7 The Court is satisfied that there has been no undue delay by the Applicants in bringing these proceedings. The period between 22 March 2005, being the date of the notification, and the date of the institution of these proceedings namely, 15 April, does not constitute an inordinate delay such as to disentitle an application for expedition.

8 There are matters upon which the Court, on the current evidence, could not be satisfied that expedition is essential. The affidavit of Ms Sayed refers to numerous ill effects allegedly suffered by the occupants of strata units within the strata plan. Whether these effects can be attributed solely to the conduct of the First and Second Respondents is not established.

9 Despite these considerations, the Court is satisfied that directions should be made in these proceedings which will ensure an early hearing. There is no substantial current delay in matters being listed for hearing in the Court and whilst the Court is mindful of proceedings which are taking place in another Tribunal, there is no reason why these proceedings cannot be prepared ready for trial. The Court proposes to make the orders which it considers the Registrar would have made had the Registrar been appraised of the nature of these proceedings.

10 Mr Norton for the First and Second Respondents has referred to the need to minimise costs and for that reason suggests that the hearing of the motion now before the Court be adjourned to another date. Because the issues of fact and the issues of law are not complex, it would not be appropriate for no orders to be made for the preparation of the hearing.

11 Accordingly, the Court will make the following orders.

The Court orders that:-

1. The Applicants file and serve any affidavits upon which they wish to rely by 12 May 2005.

2. The Respondents file and serve points of defence and any affidavits upon which they rely by 27 May 2005.

3. The proceedings are to be listed before the Duty Judge on Wednesday 8 June for the purpose of determining whether the proceedings should be referred at that stage to the Registrar for the allocation of a hearing date.

4. The costs of this motion are to be costs in the proceedings.

****************************

I HEREBY CERTIFY THAT THE PRECEDING 11 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE D.A. COWDROY OAM

Associate

Dated: 22/6/05