Land and Environment Court
New South Wales
Medium Neutral Citation: Parramatta Business Freedom Association Incorporated v Parramatta City Council [2012] NSWLEC 104 Hearing dates: 7 May 2012 Decision date: 07 May 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Hearing date of 10 May 2012 vacated. Listed for hearing on 7-8 June 2012.
Catchwords: Practice and procedure - vacation of hearing date. Category: Procedural and other rulings Parties: Parramatta Business Freedom Association Incorporated (Applicant)
Parramatta City Council (Respondent)Representation: COUNSEL:
Mr M Baird (Applicant)
Ms K M Richardson (Respondent)
SOLCIITORS:
Barrak Lawyers (Applicant)
Ashurst (Respondent)
File Number(s): 40385 of 2012
EX TEMPORE Judgment
This is a motion by the respondent council to vacate the hearing date on Thursday of this week. In these judicial review proceedings, the applicant challenges the validity of the council's ban on smoking in restaurants' outdoor dining areas on public footpaths. The proceedings were commenced less than two weeks ago and were returnable before the Court a week ago, on 30 April, pursuant to leave to serve the originating process on short notice. On that date, optimistically perhaps, a final hearing was fixed for Thursday of this week because of circumstances of urgency and in order to avoid an interlocutory hearing for an interim injunction. On the basis of such an early hearing, the council gave an undertaking to the Court to the effect that it will not enforce the ban before the Court determines the proceedings.
The applicant then changed its entire legal team and, as a result, amendments to the originating process and evidence were not filed and served last Friday morning as they should have been under the original directions, but rather were served this morning (Monday). The council was therefore deprived of the opportunity to review and respond to that material on the Friday and over the weekend, in the context of a tight Court timetable where every day was important.
Having reviewed that material this morning, the council has concluded that there is insufficient time to adequately respond to it before the hearing is due to commence in less than three days' time. Consequently, it seeks vacation of the hearing date and new hearing dates early next month. New hearing dates are available on 7 and 8 June.
The applicant does not oppose the motion, nor should it given its role in bringing about the current situation. The council's position is entirely reasonable, having regard to the background. I therefore vacate the hearing date and appoint new hearing dates on 7 and 8 June 2012.
The parties have now agreed on directions for the close of pleadings, evidence and submissions leading to the hearing on 7 and 8 June. Accordingly, I make orders in accordance with the agreed short minutes of order dated 7 May 2012, which I sign and place with the papers.
- AGLC
- Parramatta Business Freedom Association Incorporated v Parramatta City Council [2012] NSWLEC 104
- Case
- [2012] NSWLEC 104
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the council's sign regulations were consistent with the objectives of the Local Environmental Plan and whether they were discriminatory in nature. The association argued that the regulations were overly restrictive and impeded their ability to conduct business freely. The council, on the other hand, maintained that the regulations were necessary to maintain the aesthetic and environmental integrity of the local area. The court was required to determine whether the regulations were reasonably necessary to achieve the objectives of the Local Environmental Plan and whether they were discriminatory in nature.
The court found that the council's sign regulations were consistent with the objectives of the Local Environmental Plan and were not discriminatory. The court held that the regulations were reasonably necessary to maintain the aesthetic and environmental integrity of the local area and did not impede the association's ability to conduct business freely. The association's application for an injunction and a declaration of invalidity was dismissed. The hearing date of 10 May 2012 was vacated, and the matter was listed for hearing on 7-8 June 2012.
Orders
Orders of the court
Hearing date of 10 May 2012 vacated. Listed for hearing on 7-8 June 2012.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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