Mosman Municipal Council v IPM Pty Ltd

[2015] NSWLEC 102

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mosman Municipal Council v IPM Pty Ltd [2015] NSWLEC 102

Hearing dates:

19 June 2015

Date of orders:

19 June 2015

Decision date:

19 June 2015

Jurisdiction:

Class 4

Before:

Craig J

Decision:

1. Vacate the hearing of the proceedings fixed to commence on Tuesday 23 June 2015.

2. Fix the proceedings for a three day hearing commencing on Monday 31 August 2015.

3. Extend time for compliance with Orders 4, 5 and 6 made on 16 June 2015 to 4.00pm on 25 June 2015.

4. Costs on the motion are reserved.

Catchwords:

PRACTICE AND PROCEDURE - application to vacate hearing dates - senior counsel briefed by applicant unavailable due to illness - alternative senior counsel unavailable - proceedings raise important questions of law and fact - application not opposed by respondents - extension of time for compliance with directions - application granted

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW)

Cases Cited:

Trives v Hornsby Shire Council [2015] NSWCA 158

Category:

Procedural and other rulings

Parties:

Mosman Municipal Council (Applicant)
IPM Pty Ltd (First Respondent)
Mosman Bay Trading Pty Limited (Second Respondent)
Dean Morton (Third Respondent)
Mondan Management Pty Ltd t/as Vic Lilli & Partners (Fourth Respondent)

Representation:

Counsel:
J Johnson (Applicant)
C McEwen SC (First and Second Respondents)
Submitting appearance (Third and Fourth Respondents)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Addisons Lawyers (First and Second Respondents)
Colin Biggers & Paisley (Third and Fourth Respondents)

File Number(s):

40817 of 2014

EX TEMPORE Judgment

1. The applicant, Mosman Municipal Council (the Council), applies by motion filed today to vacate the three day hearing of these proceedings fixed to commence before me on Tuesday next, 23 June 2015. The vacation of the hearing dates is not opposed by the first and second respondents, who are the only active respondents to the proceedings, subject to a debate as to new hearing dates should the Court accede to the Council’s application.

2. The Council’s motion is supported by the affidavit of Julie Anne Walsh sworn today. Ms Walsh is the Council’s solicitor. In substance, her evidence reveals that last night she was notified that senior counsel retained to appear for the Council, Timothy Robertson SC, was admitted to hospital with an acute medical condition. Mr Robertson is to undergo surgery today to address his condition and as a consequence he will not be able to appear in Court on Tuesday next. Mr C McEwen SC, who appears for the first and second respondents, accepts this evidence without challenge.

3. Earlier this week, on Tuesday 16 June, the parties appeared before me for directions and case management. As a result of that hearing, I have some familiarity with the issues that arise in the proceedings. That understanding has been enhanced both by the written submissions prepared on behalf of the Council, filed in Court at that time, together with the oral submissions then addressed to me by Mr McEwen. The written submissions then handed up had been prepared by Mr Robertson and junior counsel retained to appear with him, Mr J Johnson. Those submissions, together with the oral submissions that I had received on Tuesday last, all accepted that there were complex legal issues raised in the proceedings.

4. One of the issues raised is directed to inconsistency between a development consent and a complying development certificate subsequently issued for aspects of the development that were the subject of the earlier development consent. Further, the Council challenges the validity of the complying development certificate, a challenge raising issues considered but not necessarily resolved by the Court of Appeal in Trives v Hornsby Shire Council [2015] NSWCA 158, a decision delivered only on 11 June 2015. The third significant issue arising in the proceedings concerns the operation of s 101 of the Environmental Planning and Assessment Act 1979 (NSW), as it applies to the present proceedings, it being accepted by the Council as a fact that its proceedings were not commenced within three months from the date on which public notice of the grant of the complying development certificate was purportedly given.

5. The evidence of Ms Walsh establishes that Mr Robertson has been briefed in the proceedings since April of this year. As I have indicated, he prepared, jointly with junior counsel, the written outline of submissions that has been filed in the principal proceedings. Ms Walsh has also provided evidence that during the course of today she has made contact with the chambers of six other senior counsel in an endeavour to establish the availability of any one of them to appear on Tuesday next. None of them are available.

6. As the proceedings do raise important questions of law of the kind that I have identified, I am satisfied that it would be unfair to insist upon the hearing fixed for Tuesday next to proceed in the absence of senior counsel for the Council. I am fortified in this conclusion by Mr McEwen’s acceptance that the proceedings do raise important questions of fact and law and that the vacation of the hearing dates is not opposed by his client.

7. There is an issue between the parties as to the date upon which the further hearing should be fixed. Mr Johnson, as junior counsel for the Council, seeks to have the hearing fixed to commence on Monday 31 August 2015. This is the first three day block of dates mutually convenient to senior counsel on both sides.

8. Mr McEwen states, expressly on instructions, that his client seeks to have the matter fixed for three days to commence on Wednesday 29 July, being dates when he is available but Mr Robertson is not. However, Mr McEwen acknowledges that when the matter was listed before the Registrar in April last for the purpose of fixing hearing dates, his client had accepted August dates. The only reason why those dates were not allocated was that the dates then proposed by the parties fell outside the range of hearing dates being allocated by the Registrar. Mr McEwen also acknowledges that there is no additional prejudice to his client should the dates sought to accommodate Mr Robertson’s availability be allocated.

9. Fortunately, the circumstances in which the present application to vacate hearing dates is made occur infrequently. The illness of Mr Robertson is to be regretted. Given his involvement with the matter over some months, his preparation of written submissions, his capacity to assist the Court in resolving important issues of law and the unavailability of other senior counsel to appear on Tuesday next leads me to conclude that the Council’s application to vacate the hearing dates next week should be granted. Given the concessions fairly made by Mr McEwen and the fact that there is a difference of only one month between the alternate hearing dates proposed, it is appropriate, in my opinion, that the hearing be fixed to commence on 31 August 2015, reflecting dates upon which both present senior counsel are available.

10. In the event that I am disposed to vacate the hearing dates for next week, as I am, the parties have agreed upon an extension of time for compliance with two of the directions that I made on 16 June. I am satisfied that there will be no prejudice to the proper conduct of the proceedings if I accede to the request to extend time for compliance as that extension will still require observance of those directions by Thursday next, 25 June.

11. Accordingly, I make the following orders:

1. Vacate the hearing of the proceedings fixed to commence on Tuesday 23 June 2015.

2. Fix the proceedings for a three day hearing commencing on Monday 31 August 2015.

3. Extend time for compliance with Orders 4, 5 and 6 made on 16 June 2015 to 4.00pm on 25 June 2015.

4. Costs on the Motion are reserved.

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Decision last updated: 22 June 2015