Rory Developments Pty Limited v South Sydney City Council
[2004] NSWLEC 236
•05/04/2004
Land and Environment Court
of New South Wales
CITATION: Rory Developments Pty Limited v South Sydney City Council [2004] NSWLEC 236 PARTIES: APPLICANT
Rory Developments Pty Limited
RESPONDENT
South Sydney City CouncilFILE NUMBER(S): 11549 of 2003 CORAM: Pain J KEY ISSUES: Practice and Procedure :- leave to file amended statement of issues LEGISLATION CITED: CASES CITED: Riopar Pty Limited v Lane Cove Council [2002] NSWLEC 230;
The State of Queensland and Another v J L Holdings (1996-1997) 189 CLR 146;
Wilson v Bourke Shire Council and Anor [2000] NSWLEC 271DATES OF HEARING: 04/05/2004 EX TEMPORE
JUDGMENT DATE :05/04/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr Seton (solicitor)
SOLICITOR
Deacons
RESPONDENT
Mr Bingham (solicitor)
SOLICITOR
Marsdens
JUDGMENT:
- IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11549 of 2003
4 May 2004Pain J
- Applicant
- Respondent
1. The Respondent in proceedings 11549 of 2003 has filed a Notice of Motion seeking:
- (a) the Court’s leave to file an Amended Statement of Issues, which is attached to that Notice of Motion;
(b) orders that the hearing date of 25 May 2004 be vacated; and
(c) other consequential orders in relation to timetable.
- An affidavit of Mr White dated 23 April 2004 was filed, relied on and read in Court in support of that Notice of Motion.
2. I have heard argument from both parties and it seems to me it is appropriate that I grant the orders sought in the Notice of Motion. I will just give brief reasons for doing that.
3. I am informed that these Class 1 proceedings were commenced by the Applicant on 16 December 2003. A Statement of Issues dated 4 February was originally filed by the South Sydney City Council which essentially identified only one or two issues.
4. After this Statement of Issues was filed, the matter was proceeding, apparently, on the basis that it was anticipated that consent orders would be sought by the parties from the Court. However I am informed that, as a result of the amalgamation of councils and changes in council boundaries in early February 2004, the City of Sydney rather than the City of South Sydney is now the relevant council.
5. As a consequence, there has been a change in both the delegated authority regime so that the original planner who considered this matter for the City of South Sydney Council is no longer able to deal with it under delegated authority. Apparently, it is now required that the matter would proceed through different channels mandated by the City of Sydney Council so that it cannot be dealt with under delegated authority.
6. It also appears that following the further re-exhibition of the amended plans filed by the Applicant, which exhibition was completed on 9 April 2004, that the matter was considered again by new planners at the City of Sydney Council who have raised substantial concerns with the proposal, which I am told relates to a large site of some 16,000 square metres in area.
7. It seems to me that this is not a case where the Court is being used for political purposes. While the matter may not have yet proceeded to an elected level in the City of Sydney Council, it is certainly open to senior planners in the Council to form the view that they have and it is appropriate they give instructions to their solicitors, as they have done, seeking to raise further issues.
8. Given that the development does appear to be a large one, and expressing no view at all as to the merits of the issues now sought to be raised, there are clearly substantial merit issues that appear appropriate to be raised in this Court. At this stage of proceedings I am not minded to deny the Council the ability to do so. I will allow the Amended Statement of Issues to be filed.
9. I should note for completeness that I have been referred to two decisions of Cowdroy J of this Court, Wilson v Bourke Shire Council and Anor [2000] NSWLEC 271 and Riopar Pty Limited v Lane CoveCouncil [2002] NSWLEC 230 . In Riopar Pty Limited I have been particularly referred to par 3 where Cowdroy J sets out a passage of the decision of The State of Queensland and Anor v J L Holdings (1996-1997) 189 CLR 146 , a decision of the High Court. I adopt the passage set out by Cowdroy J in Riopar in relation to J L Holdings and the reasoning Cowdroy J applied in Riopar about the necessity to allow issues to be aired in proceedings.
10. It also follows that the hearing date of 24 May 2004 should be vacated.
11. In relation to costs I note that the Applicant has sought its costs in relation to both the Notice of Motion filed by the Respondent and in relation to costs thrown away by the Applicant as a result of the late change made by the Respondent to its Statement of Issues. The Respondent noted that given the lateness of the amendment sought it could not oppose costs in relation to the Notice of Motion but it indicated that it would oppose any order for costs thrown away. In light of this I order that the Respondent pay the Applicant’s costs in relation to the Notice of Motion but think it appropriate to reserve the issue of costs thrown away to be determined at the completion of the proceedings.
Orders
12. The Court makes the following orders:
1. The Respondent Council is granted leave to file an Amended Statement of Issues in the form of that annexed to the Respondent’s Notice of Motion filed on 27 April 2004.
2. The hearing date of 24 May 2004 is vacated.
3. The proceedings are to be listed before the Registrar on 5 May 2004 for the allocation of:
(a) a new timetable in respect of the provision of expert evidence;
(b) a new timetable in respect of the joint conferencing of experts; and
(c) a hearing date as soon as possible after 15 June 2004 for a 3 day hearing.
4. The Respondent is pay the Applicant’s costs in relation to the argument on the Respondent’s Notice of Motion filed on 27 April 2004.
5. The question of costs thrown away by the Applicant as a result of the Respondent amending its Statement of Issues is reserved.
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