P Cave v The Council of the City of Gosford

[1988] NSWLEC 165

Land and Environment Court

of New South Wales

CITATION:	P Cave v The Council of the City of Gosford [1988] NSWLEC 165
PARTIES:	APPLICANT P. Cave RESPONDENT The Council Of The City Of Gosford
FILE NUMBER(S):	20545 of 1987
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act, 1979
CASES CITED:	Double Bay Marina Pty Limited v. Woollahra Municipal Council,
DATES OF HEARING:
DATE OF JUDGMENT:	03/18/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This is a motion by Harold Sperling, an adjoining owner to the applicant for development consent which is now the subject of an appeal to this Court.

The applicant has no right without the order of this Court to give evidence or to appear in person, and that application is opposed by both the applicant for consent and the consent authority, the Council of the City of Gosford.

The applicant relies upon the finding of Cripps J., as he then was, in Double Bay Marina Pty Limited v. Woollahra Municipal Council, 54 L.G.R.A., 313 at 314. In that case an adjoining owner was given leave in Class 1 proceedings to appear as a party to the proceedings on the basis of the Court's powers pursuant to s.38 of the to obtain assistance from any person having professional or other qualifications relevant to any issue arising for determination of proceedings, and the right to receive in evidence any certificates of such person, and further to conduct the proceedings without compliance with the rules of evidence.

I will not set out the full basis of the application. I am not satisfied on the evidence that a case has been made out that the adjoining owner is entitled to appear in these proceedings with the full rights and obligations of a party.

However, I am satisfied that in the circumstances of the case the Court should be given the full opportunity of obtaining the assistance of any person having a contribution to make to the proceedings. In that way the Court might inform itself of all matters that might be relevant for a proper consideration of the issues before the Court.

I therefore propose to refuse the motion that the applicant be a party to the proceedings, but I grant leave to the applicant to appear with Counsel, if so desired, for the presentation of evidence by the applicant or any expert which he deems appropriate with respect to the issues before the Court in these proceedings.

It follows, therefore, that the applicant would not have the right of cross examination, but may make submissions with respect to the orders which should be made in the proceedings.

An application for costs has been made for these proceedings. These are Class 1 proceedings and I see no reason why the ordinary rule should not apply and I make no orders as to costs.