Parks and Playgrounds Movement Inc v Newcastle City Council

[2010] NSWLEC 180

Land and Environment Court

of New South Wales

CITATION:

Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 180

PARTIES:

APPLICANT:
Parks and Playgrounds Movement Inc

RESPONDENT:
Newcastle City Council

FILE NUMBER(S):

40745 of 2010

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application for vacation of hearing date, for a new hearing date two weeks thereafter, and for an order that council provide documents relied upon when making a challenged decision.

LEGISLATION CITED:

Land and Environment Court Act 1979, s 20
Land and Environment Court Rules 2007, r 4.3
Protection of the Environment Operations Act 1997, s 253
Roads Act 1993

CASES CITED:

Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 173

DATES OF HEARING:

22 September 2010

EX TEMPORE JUDGMENT DATE:

22 September 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Ms L M Byrne, barrister
SOLICITORS
Catherine Henry Partners

RESPONDENT:
Mr A Galasso SC
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

22 September 2010

40745 of 2010

PARKS AND PLAYGROUNDS MOVEMENT INC v NEWCASTLE CITY COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a motion by the applicant seeking an order that the hearing date next Monday 27 September 2010 be vacated and that the matter be listed for hearing in about two weeks; and an order pursuant to r 4.3 of the Land and Environment Court Rules 2007 and the Class 4 Practice Direction that the respondent be directed to provide to the applicant all the documents upon which it relied to make its challenged decision to remove certain trees.

2 The background to the matter is found in my recent judgment of 17 September 2010 in which I granted an interlocutory injunction restraining the respondent council from removing certain trees pending determination of these proceedings or further order: Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 173. At that time the matter was set down for hearing within an extraordinarily short time frame of a little over a week albeit by consent.

3 The applicant seeks a further two weeks for a hearing date because it says that it is not in a position to properly prepare for the hearing. Indeed, it is already in breach of the directions that were made concerning the time for filing and service of points of claim. Several reasons are put forward. The first reason is that in order to challenge the validity of the council resolution for the removal of the trees, the applicant needs to see the documents upon which the council relied. Hence the application for an order under r 4.3 of the Court’s rules. Secondly, it is said that there has otherwise been difficulty in obtaining necessary information to advance the applicant’s case from the council’s website. Thirdly, since delivery of my reasons for judgment the applicant has changed its lawyers. Fourthly, it is said that the proceedings raise jurisdictional and serious issues in relation to the respondent’s reliance on power under the Roads Act 1993 to which I referred in my judgment. It is said that there are no cases that have examined the point and that the matter may well become a test case in relation to council powers to remove trees on public roads. The applicant argues that the proceedings are, or include, proceedings under s 253 of the Protection of the Environment Operations Act 1997, which is within Class 4 of the Court’s jurisdiction under s 20 of the Land and Environment Court Act 1979.

4 The respondent opposes the motion. As to the hearing date, there has to be taken into account, as the respondent points out, that there is a safety issue involved in relation to these trees. The extent of the safety issue or whether there is any substantial safety issue seems to be in controversy. Nevertheless, I note that the council has taken special steps to make this area safe, that the trees have been in position for the better part of a century, and I do not think I was directed to any particular evidence which indicates that there have been specific safety incidents which would cause the Court to be deterred from acceding to this application for postponement of the hearing date for about two weeks. The respondent also draws attention to the applicant’s timetable slippage; the absence of explanation as to why the applicant has changed its lawyers; the fact that these trees have been the subject of community concern for some time; and other matters including that the respondent disputes there should have been any difficulty in obtaining information on the council’s website.

5 After taking into account all the matters that have been put to me on both sides, I am persuaded on balance that there should be a postponement of the hearing date for about two weeks in order to provide the applicant with procedural fairness. The dates of 6 and 7 October 2010 are available and are suitable to both parties. I propose to vacate the hearing date on Monday, substitute hearing dates of 6 and 7 October, and make the order sought pursuant to r 4.3.

6 Following delivery of the above reasons, counsel have brought in short minutes of order to reflect my decision and to provide for the service of evidence and submissions prior to the hearing. I make orders in accordance with the short minutes which I initial and place with the papers.

7 The respondent seeks its costs of the applicant’s notice of motion. In the circumstances, including that the original orders providing for a hearing date next Monday were made by consent, I order the applicant to pay the respondent’s costs of the applicant’s notice of motion filed on 22 September 2010.