Sardi v Central Coast Council

[2020] NSWLEC 1348

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sardi v Central Coast Council [2020] NSWLEC 1348

Hearing dates:

04 August 2020

Date of orders:

04 August 2020

Decision date:

04 August 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The Respondent application made by way of notice of motion to further amend its SOFAC is granted, save for the material contained within paragraph 99 of its further amended SOFAC, which were annexed to its notice of motion, and which are not read.

(2) The dates of 3 and 4 August 2020, which the Court had set down for hearing of the appeal concerning the Respondent’s refusal of the Applicant’s DA 53997/2018, are vacated.

(3) The Parties are directed to appear before the Registrar on Wednesday 5 August 2020 for further directions in the appeal.

Catchwords:

NOTICE OF MOTION – application to amend Respondent’s statement of facts and contentions – vacation of hearing dates – procedural fairness to Applicant – late identification of potentially contaminated material on subject site

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Category:

Procedural and other rulings

Parties:

Sandro Sardi (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
H Irish (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2019/280616

Publication restriction:

No

Judgment

1. COMMISSIONER: By notice of motion, the Respondent seeks leave to further amend its statement of facts and contentions (SOFAC) in this appeal in response to the late identification of potentially contaminated fill on the site that is the subject of these proceedings.

2. The appeal concerns the Respondent’s refusal of its development application DA 53997/2018 to subdivide a single lot into nine lots at 17-25 Fountains Road, Narara (the Subject Site).

3. Affidavits accompanying the notice of motion from Ms Elizabeth Ryan, and the engineering experts, Mr John Noakes and Mr Kuldip Singh, confirm that the late identification of potentially contaminated materials on the Subject Site arose in the course of those experts preparing evidence with respect to flooding matters. That evidence had been adduced under the direction of the Court.

4. The Parties advise that, other than in relation to the lately identified potential presence of contaminated fill on the Subject Site, contentions between them have been significantly narrowed, and that:

1. the contentions as previously identified by the Respondent have been largely resolved through the provision of expert evidence adduced by the Court in these proceedings, and

2. the contentions that remain in dispute are of narrow compass.

5. This potential presence on the site of contaminated materials gives rise to a jurisdictional consideration under the provisions of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP55). In respect of this, for reasons of procedural fairness, the Applicant said it should be afforded time in order that the issue may be adequately addressed and so that the appeal could be heard in manner that is consistent with the resolution of the dispute in a just, quick and cheap manner.

6. The Applicant:

1. Accepts that potential presence of contaminated fill on the site presents a jurisdictional hurdle to the Court’s consideration of the appeal at hearing.

2. Submits that the late identification and notification of this issue so close to the commencement of proceedings in this appeal, and the time required for this issue to be properly addressed, are such that it would be prejudicial to the Applicant for the matter to proceed on the dates currently listed for the hearing by the Court.

3. Also submits that the inclusion by the Respondent of a further contention concerning potential impacts of the Applicant’s proposed subdivision of the site, and the presence of potentially contaminated fill thereon, on a population if Eucalyptus biconvexa (referenced within paragraph 99 of the Respondent’s draft further amended SOFAC for which it seeks leave) is unwarranted in circumstances where the evidence of an expert ecologist is available in relation to that matter.

4. Concludes that, should leave be granted to the Respondent’s further amended SOFAC as pleaded, then the listed dates for hearing of the appeal of 3 and 4 August 2020 should be vacated, and the Applicant asks that the matter be listed for further directions before the Registrar on Wednesday 5 August 2020.

7. The Respondent does not oppose the vacation of the hearing dates as proposed by the Applicant for reasons of procedural fairness and in order that the Applicant can deal with the late identification of the potential presence of contaminated materials on the Subject Site.

8. I agree with the Respondent that, in order for the issue of potentially contaminated materials to be addressed by the Applicant, leave should be granted for it to rely on its further amend SOFAC, so that the Applicant can respond to a particularisation of this new contention.

9. However, I agree with the Applicant that the extent to which the Respondent’s SOFAC should be amended should not extend to the matters contained within paragraph 99 of the Respondent’s draft further amended SOFAC concerning Eucalyptus biconvexa.

10. I also accept that, for reasons of procedural fairness, the dates currently set down for hearing the appeal in this matter, being 3 and 4 August 2020, should be vacated.

11. The Court orders:

1. The Respondent application made by way of notice of motion to further amend its SOFAC is granted, save for the material contained within paragraph 99 of its further amended SOFAC, which were annexed to its notice of motion, and which are not read.

2. The dates of 3 and 4 August 2020, which the Court had set down for hearing of the appeal concerning the Respondent’s refusal of the Applicant’s DA 53997/2018, are vacated.

3. The Parties are directed to appear before the Registrar on Wednesday 5 August 2020 for further directions in the appeal.

……………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 05 August 2020