Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd

[2014] NSWLEC 168

Land and Environment Court

New South Wales

Case Title:	Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd
Medium Neutral Citation:	[2014] NSWLEC 168
Hearing Date(s):	24 October 2014
Decision Date:	24 October 2014
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Proceedings expedited. Hearing dates fixed. Directions in accordance with short minutes.
Catchwords:	PRACTICE AND PROCEDURE - judicial review challenging validity of development consent for a marina - whether proceedings should be expedited and early hearing dates given.
Legislation Cited:	Conveyancing Act 1919 s 88K Environmental Planning and Assessment Act 1979 Part 3A
Cases Cited:	Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93
Category:	Procedural and other rulings
Parties:	Moorebank Recyclers Pty Ltd (Applicant) Benedict Industries Pty Ltd (First Respondent) Tanlane Pty Ltd (Second Respondent) Sydney West Joint Regional Planning Panel (Third Respondent) Liverpool City Council (Fourth Respondent)
Representation
- Counsel:	COUNSEL: J Lazarus (Applicant) T Hale (First & Second Respondents) Submitting appearance (Third Respondent) Submitting appearance (Fourth Respondent)
- Solicitors:	SOLICITORS: Mark McDonald & Associates (Applicant) Minter Ellison (First & Second Respondents) Department of Planning and Environment (Third Respondent) Sparke Helmore (Fourth Respondent)
File Number(s):	40850/14

EX TEMPORE JUDGMENT

1. This is an uncontested motion for expedition by the applicant in judicial review proceedings. The proceedings are a challenge to the validity of a development consent granted by the third respondent, Sydney West Joint Regional Planning Panel, for a marina on land at Moorebank.

2. The land is owned by the second respondent, Tanlane Pty Ltd. The first respondent, Benedict Industries Pty Ltd, is an entity under the control of Tanlane and operates a sand extraction and waste recycling facility on the Tanlane land. The applicant, Moorebank Recyclers Pty Ltd, owns the adjoining land. The third respondent and the fourth respondent, Liverpool City Council, have filed submitting appearances.

3. The primary reason put forward for expedition of the proceedings is that the marina development consent potentially affects the determination by the Planning and Assessment Commission (PAC) of Moorebank's pending application under Part 3A (now repealed) of the Environmental Planning and AssessmentAct 1979 for a materials recycling facility on the Moorebank land.

4. In June 2013 in proceedings brought by Moorebank under s 88K of the Conveyancing Act 1919, I granted conditional easements of carriageway and for construction, maintenance and repair burdening adjoining land owned by the Council and benefitting the Moorebank land: Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93. Those proceedings were expedited and heard and determined urgently on the basis that there was said to be a need to do so before Moorebank's pending Part 3A application could be determined and that it was the position of the relevant government department that all such applications needed to be determined by 30 June 2013. However, it is now late October 2014 and Moorebank's Part 3A application still has not been determined.

5. There is evidence that two months ago, in August 2014, an officer of NSW Planning and Environment advised Moorebank's town planner that departmental staff were finalising the assessment report in respect of the Part 3A application; that it was likely that the report would be submitted to the PAC by the end of October 2014; and that it was likely a public meeting with respect to the Part 3A application would be convened by the PAC in January 2015. That information has not been updated.

6. Moorebank submits that it is appropriate for the proceedings to be determined before its Part 3A application is considered by the PAC in January 2015 because the marina development on the Tanlane land is a relevant consideration in the assessment of the Part 3A application; and if the Court declares the marina consent to be void, the PAC will potentially take into account an irrelevant consideration and its decision could therefore be the subject of a legal challenge. It is also submitted that substantial time and expense would be wasted in addressing issues raised by the approved marina development if the Court subsequently declares it to be invalid.

7. There is evidence from Moorebank's town planner that, so far as he is aware, there is no reasonable prospect of persuading the Department or the PAC to defer making a determination until the proceedings are determined, say in mid 2015, assuming expedition is not granted. I am not prepared to accept that the PAC will necessarily make a decision early in 2015, given the history of the Part 3A application and the fact that the information obtained two months ago has not been updated: see [ REF _Ref401918342 \r \h 4], [ REF _Ref401918355 \r \h 5] above. I think it is quite uncertain as to when the PAC will determine the Part 3A application. Nevertheless, I am persuaded that the evidence is sufficient to grant expedition and to fix a three day hearing in February 2015. The Court has no available dates for the hearing until February 2015, short of displacing other matters fixed for hearing or sitting outside normal court hours. In those circumstances, Moorebank does not press for hearing dates before February 2015. The first and second respondents do not object to expedition or to hearing dates convenient to them being fixed in February 2015.

8. In these circumstances, I propose to grant expedition, to fix the matter for hearing on 9, 10, and 11 February 2015 (which are convenient to the active parties) and to make pre-hearing directions.

9. The orders of the Court are in accordance with the short minutes of order dated 24 October 2014, which I sign and place with the papers.