Rose Bay Afloat Pty Ltd (Formerly Titanic Floating Restaurant Pty Limited) v Woollahra Municipal Council

[2003] NSWLEC 116

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Land and Environment Court

of New South Wales

CITATION:	Rose Bay Afloat Pty Ltd (Formerly Titanic Floating Restaurant Pty Limited) v Woollahra Municipal Council [2003] NSWLEC 116
PARTIES:	APPLICANT: Rose Bay Afloat Pty Ltd (Formerly Titanic Floating Restaurant Pty Limited) RESPONDENT: Woollahra Municipal Council
FILE NUMBER(S):	10957 of 2001
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- application stay of proceedings based upon existence of pending application for leave to appeal to Court of Appeal against interlocutory judgment.
LEGISLATION CITED:
CASES CITED:	Ervin Mahrer v Strathfield Municipal Council (2001) NSWLEC 228
DATES OF HEARING:	21/03/2003
EX TEMPORE JUDGMENT DATE :	03/21/2003
LEGAL REPRESENTATIVES:	APPLICANT: J E Robson, Barrister SOLICITORS Baker and McKenzie RESPONDENT: Mr P Clay, SOLICITORS Michell Sillar

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10957 of 2001

Coram : Bignold J

21 March 2003

ROSE BAY AFLOAT PTY LTD (FORMERLY TITANIC FLOATING RESTAURANT PTY LIMITED)

Applicant

v

WOOLLAHRA MUNICIPAL COUNCIL

Respondent

JUDGMENT

1. This is a Motion to vacate hearing dates that have been allocated for the hearing of a development appeal which was filed in the Court in 2001. The hearing dates were allocated on 3 September 2002 and the dates allocated are the week commencing 19 May 2003.

2. The development application is for a restaurant and public boardwalk and pontoon on land situated below mean high watermark at Rose Bay, but close to the landward side.

3. The application to vacate the hearing is based upon the fact as deposed to in the affidavit of the Council’s Solicitor that there is an application for leave to appeal to the Court of Appeal brought by Waterways Authority against a decision of mine on 18 November 2002: see (2002) NSWLEC 208.

4. By that decision in those interlocutory proceedings I determined in advance of the hearing of the appeal on the merits a number of questions that had been raised concerning the validity of a proposed amendment to the development application and the competence of the Court to entertain the amended application.

5. Arguments advanced by the Council were rejected and I held that the matter was within the Court’s jurisdiction and competence to allow the amendment and to hear the appeal on the basis of the amended plans if that is what the Applicant elected.

6. The judgment of 18 November also dealt with submissions made by the Waterways Authority which argued that the proposed amendment to the development application was beyond the Court’s power because the amendment had not been supported by the consent of the land-owner, that is the Waterways Authority or the Ministerial Corporation for whom the Waterways Authority acts, being the person in whom the bed and waters of Sydney Harbour are vested. That argument was also rejected in my judgment and it is from that decision that the Waterways Authority seeks leave to appeal.

7. Although the Waterways Authority in December 2002 filed a holding summons for leave to appeal against my decision on 18 November it was not until March 2003 that a summons seeking leave to appeal was duly filed. That summons has received a return callover day in May 2003 and it is possible that the application for leave to appeal and the appeal itself, if leave is granted, will be heard, by the Court of Appeal, according to the Council’s Solicitor’s inquiries in September of 2003.

8. The only claim of prejudice asserted by the Council in advancing its case for the vacation of the hearing dates, which is opposed by the Applicant, is that the Council is apt to spend a considerable amount of money in defending the development appeal allocated for hearing by this Court in May 2003 which expenditure is apt to be thrown away in the event of the Waterways Authority being granted leave to appeal against my interlocutory judgment and that appeal ultimately being upheld by the Court of Appeal.

9. In the affidavit of Mr Van Tran sworn on 20 March 2003 he deposes to the likely incurring of substantial costs on the hearing of the merits and the parties have accepted that costs in the order of $50,000 to $75,000 for the five day hearing are likely to be incurred or are within the range of costs likely to be incurred by the Council in that merits appeal.

10. The principles upon which the Court should exercise its discretion in this particular case are collected and discussed and applied in the recent decision, Ervin Mahrer v Strathfield Council (2001) NSWLEC 228 and the parties have been content to advance their respective cases on the basis that that decision enunciates the relevant principles. It is true as Counsel for the Council has pointed out that the facts of that case are a little different from the facts of the present case, but nonetheless the fundamental principles are there stated and are relevant here.

11. In my judgment, the overruling consideration in the present case is the litigation history in this Court including the fact that the hearing dates for May 2003 were allocated by the Court in December 2002 following my decision on the preliminary questions of law and fact delivered in November of 2002. Four months after that judgment on the preliminary questions, the Waterways Authority, which was joined as a party to the litigation confined to the issue of whether it was within the Court’s competence to allow an amendment of the application without the Waterways Authority in the capacity of relevant land owner consenting to that amendment, has filed its application for leave to appeal and some three months have elapsed since the hearing dates were fixed.

12. It is, of course, problematical as to the outcomes of the application for leave to appeal and any subsequent appeal if leave is granted and on one view it may be accepted that the Council in this Court will be put at risk of spending money at the merits hearing which expenditure may be wasted in some sense or another if the litigation both in this Court and in the Court of Appeal ultimately produces a result having that combined effect (ie the appeals in t his court and in the Court of Appeal both being successful).

13. But as I pointed out in Ervin Mahrer, fundamentally the business of this Court and its statutory functions in hearing development appeals must be undertaken in accordance with the practices at procedures and priorities of this Court and not with an eye on what may or may not happen in the Court of Appeal in respect of interlocutory judgments of this Court. In the present case where a developer having secured more than three months ago hearing dates for the hearing of the appeal on the merits in May wishes to prosecute that appeal and have the Court discharge its statutory functions in relation to the hearing of appeals, a presumptive entitlement for those procedures to come to their proper conclusion arises and in my opinion for the reasons given in Ervin Mahrer, the fact that there is an application for leave to appeal against my preliminary determination of last November pending in the Court of Appeal, does not provide sufficient basis or reason for denying the present applicant its entitlement to prosecute its development appeal and to obtain a result in this Court.

14. As I have said, the only prejudice alleged by the Council is the potential risk of spending costs in this case in the Court which may be aborted or wasted depending upon the results, not only of the hearing on the merits in this case but also of the ultimate decision in the Court of Appeal. Those matters are in truth problematic. For example, what if the Council is successful on the merits appeal?

15. In the exercise of my discretion, the present application, the true character of which is a stay application rather than an application to vacate the hearing dates, has not been substantiated and accordingly the Motion is dismissed. By consent, costs are reserved.