Salman & Ertas v Holroyd City Council

[2006] NSWLEC 357

Land and Environment Court

of New South Wales

CITATION:

Salman & Ertas v Holroyd City Council [2006] NSWLEC 357

PARTIES:

APPLICANT
Salman & Ertas

RESPONDENT
Holroyd City Council

FILE NUMBER(S):

11529 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Staged development for demolition, detached dual occupancy, subdivision, lot sizes, overdevelopment, amenity

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Holroyd Local Environmental Plan

DATES OF HEARING:

05/07/2005, 20/09/2005, 14/11/2005, 01/05/2006, 02/06/2006 and 16/06/2006

EX TEMPORE JUDGMENT DATE:

06/16/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Salman, litigant in person

RESPONDENT
Ms K. Gerathy, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

16 June 2006

11526-32 of 2004 Salman & Ertas v Holroyd City Council
This decision was given extemporaneously. It has been revised and edited prior to publication.

Judgment

1 This mornings proceedings arise from my consideration of arrangements to complete these matters on 2 June 2006. At that time I considered the applicants inability or unwillingness to file and serve the final plans for approval and determined that the appeals should be dismissed.

2 Submissions were subsequently made by Ms Gerathy that a further period of 2 weeks be allowed and the applicant given further notice for the intention to dismiss the appeals.

3 That course of action was followed and the applicant notified accordingly on 8 June 2006. But there has been no response and no filing/serving of the final plans required to complete the matters, therefore the appeals are to be dismissed.

4 In reaching this conclusion I refer to the following general comments I made on 2 June 2006.

When this matter it last before me on 1/5/06, the applicant undertook to serve the final plans to allow Council to consider and finalise the conditions of consent. The plans had not been served. This inaction seems typical of the entire case in this appeal which has been before the Court a considerable time, considering that the proceedings commenced in December 2004 and the following events occurred:

• It was initially fixed for hearing in April 2005. The parties agreed to a Court-appointed expert, (CAE) Mr Byrnes to prepare a planning report. The parties subsequently conferred in March 2005 and reviewed his recommendation after some amendments.
• By consent the matter was listed for On-site hearing 5/7/2005. From this OSH the parties’ agreed to an adjournment to allow the applicant to amend plans to incorporate CAE suggestions.
• 20/9/2005; there was a telephone mention with myself and there was reference to the costs of the CAE.
• 14/11/2005; further hearing on amendments where the applicant was self represented and there were still the unresolved fee issues which prevented finalisation but interim findings were made and directions to the applicant to finalise the amended plans.
• On the 11/1/06 the matter was listed for e-Court.
• On the 22/1/06 there was an e-Court dealing with conditions.
• On the 6/2/06 there was a further mention with myself and by consent the matter adjourned and still no final plans.
• On the 22/2/06 the matter went before the Chief Judge.
• On the 23/2/06 the Chief Judge made orders regarding costs and stayed the proceedings.
• On the 31/3/06 there was a further mention.
• On the 3/4/06 the Chief Judge lifted the stay of proceedings and had the matter referred back to myself.
• On the 1/5/06 there was another mention with myself where there was undertaking between the parties for the applicant to serve the final plans on Council to enable the associated conditions to be forwarded to the Court.
• On the 23/5/06 Abbott Tout on behalf of the Respondent advised the Court that they had not received the plans in accordance with the undertaking and therefore could not complete the conditions.

The Court has had great difficulty trying to contact the applicant in this matter by both telephone and by fax to try and finalise the proceedings, which is its responsibility and again there is no appearance by the applicant this morning. On the basis of the chronology, it seems to me that the matter has been running for an excessively long period and that the applicant has shown little commitment for its timely completion or willingness to communicate, considering the difficulties the Court and the respondent have had in communicating with Mr Salman. Therefore it seems to me that these appeals should be dismissed because the applicant has been unable or unwilling to present final plans of approval within a reasonable period.

Court Orders

1. The appeals are dismissed.
2. The exhibits may be returned except for Exhibits C.

___________________

R Hussey
Commissioner of the Court
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