Serenity Cove Business Park Pty Ltd & Ors v Sydney Water Corporation

[2007] NSWLEC 588

Land and Environment Court

of New South Wales

CITATION:

Serenity Cove Business Park Pty Ltd & Ors v Sydney Water Corporation [2007] NSWLEC 588

PARTIES:

FIRST APPLICANT
Serenity Cove Business Park Pty Ltd
SECOND APPLICANT
Perpetual Investment Management Ltd
THIRD APPLICANT
Apiang Woong
FOURTH APPLICANT
180 Capital Finance Ltd
FIFTH APPLICANT
Global Capital Corporation Pty Limited

RESPONDENT
Sydney Water Corporation

FILE NUMBER(S):

30363 of 2006

CORAM:

Pain J

KEY ISSUES:

Practice and Procedure :- compulsory acquisition of land - whether leave should be granted to provide parties' single contamination expert with certain expert reports - whether prejudice to Applicants due to physical alteration of acquired land by the acquiring authority.

DATES OF HEARING:

10 September 2007

EX TEMPORE JUDGMENT DATE:

10 September 2007

LEGAL REPRESENTATIVES:

FIRST AND SECOND APPLICANT
Mr J Gleeson SC with Mr MW Wright
SOLICITOR
Minter Ellison
THIRD APPLICANT
Ms J Wauchope (Solicitor)
SOLICITOR
Dibbs Abbot Stillman
FOURTH APPLICANT
Ms S Young (Solicitor)
SOLICITOR
Pateman Legal
FIFTH APPLICANT
Ms F Berglund
SOLICITOR
Hunt & Hunt

RESPONDENT
Mr MG Craig QC
SOLICITOR
Malleson Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 September 2007

30363 of 2006 Serenity Cove Business Park Pty Ltd & Ors v Sydney Water Corporation

EX TEMPORE JUDGMENT

1 Her Honour: This compulsory acquisition matter concerns land at Kurnell resumed for the desalination plant in November 2005. This is a Notice of Motion dated 30 August 2007 filed by the Respondent, the acquiring authority, seeking leave for four reports prepared in relation to contamination assessment of the fill mound on the acquired property to be provided to the agreed single expert on contamination, Mr Molinari. It also seeks orders that he answer certain specified questions concerning the results of intrusive testing in the report prepared by GHD Pty Ltd (the GHD report) and the cost of remediation, inter alia, on the basis of results identified in the GHD report obtained for the acquiring authority. The other three reports identified in the motion comment on the GHD report and were prepared for some of the applicants in this matter. The Douglas Partners Pty Ltd report was prepared for the First and Second Applicants who oppose this motion.

2 Issue 10 in the parties’ Statement of Issues and Assumptions is:

Contamination

What advice would a reasonably competent contamination expert have given to a hypothetical prudent purchaser immediately prior to the date of acquisition as to what allowance, if any, would be required for the remediation of, or removal of, any contaminated materials on the Acquired Land, having regard to the documents provided to you in your brief, the assumptions contained in paragraph 17 of this statement and any other matters you consider relevant.

3 This is the issue on which Mr Molinari has prepared his primary report. The supplementary report prepared by him was dated 3 July 2007. He provided a further report on a single question posed to him on 15 August 2007.

Respondent’s case

4 The Respondent maintained in argument that it was not seeking to change the issue identified in issue 10. The need for these additional orders is identified in the affidavit of Mr Causer dated 31 August 2007 and relates to advice from the valuer the acquiring authority seeks to call, see par 12 and 13 of Mr Causer’s affidavit of 31 August 2007. This advice is said to necessitate the orders sought in the motion. According to the Respondent there is no prejudice to the Applicants because it is not seeking to bring forward new evidence per se but rather to ask the single expert already agreed to by the parties to comment on existing material known to the Applicants in any event. Further the Applicants’ reports critiquing the GHD report are an adequate assessment of the GHD report and if provided to Mr Molinari will provide him with a balanced view of that report.

First and Second Applicants

5 The First and Second Applicants relied on the affidavit of Ms Murray, solicitor, dated 6 September 2007 and Ms Stuart, solicitor, dated 6 September 2007. The former identifies a relevant chronology of the preparations of the case to date, supplemented in a couple of respects by the affidavit of Ms Stuart. Ms Murray also attests to the prejudice likely to be suffered if the orders are made due to the need to try and obtain additional testing by Douglas Partners Pty Ltd leading to the possible vacation of the hearing dates in November 2007. The Notice of Motion is opposed on three grounds

(i) it is contrary to the regime agreed by the parties and supervised by the Court since 24 April 2007 in accordance with the orders of that date of Jagot J. This agreement provided that no reports prepared since the acquisition date should be provided to the expert Mr Molinari. The parties specifically addressed whether intrusive testing was required by Mr Molinari to deal with issue 10 in the agreed Statement of Issues in early May 2007 because the acquiring authority was about to commence earthworks which would remove the material which would be the subject of such testing. The acquiring authority accepted the advice of Mr Molinari at that time that he did not require intrusive testing in order to answer issue 10. Nor did the acquiring authority object to the scope of works he identified to the parties, which works also did not include intrusive testing. On this basis the Applicants did not press their concerns that the acquiring authority was about to undertake significant excavation work which removed the fill mounds in question on the contamination issue. Had there been any suggestion from the Respondent that it intended to pursue the course of conduct identified in the Notice of Motion the Applicants would have pressed then for access by Douglas Partners Pty Ltd to enable the necessary testing of the results in the GHD report to be undertaken.

(ii) The First and Second Applicants will suffer irremediable prejudice if the orders are made because they have conducted their case on a certain basis leading up the hearing set for seven days in November 2007. Neither the Applicants’ experts nor Mr Molinari can do intrusive testing designed to ascertain the correctness of the GHD report because the acquiring authority has now changed the condition of the site. The hearing date would be likely to be lost as the Applicants would have to ascertain what testing could be done and have that carried out if at all possible. Mr Molinari estimated that an intrusive testing program would take approximately eight weeks. Vacation of dates will cause financial hardship to the Respondent in terms of holding charges and interest incurred as detailed in the affidavit of Ms Murray.

(iii) The form of the questions raised in prayer 2 is inappropriate as they dictate the answers and do not raise issues relevant to the single expert on contamination. Rather if they are matters the Respondent wishes to raise it can do so through its valuer. This is really an attempt to have the estimate by Mr Molinari of what a prudent hypothetical purchaser would allow for testing for contamination and remediation costs to be contrasted with the much greater amount identified in the GHD report.

Finding

6 I essentially agree with the submissions of the First and Second Applicants for the reasons given by them that I should not make the orders sought in the Respondent’s Notice of Motion. I consider the Respondent is seeking to put before the Court evidence which addresses an alternative issue to that in issue 10. A fundamental matter is that the parties adopted a certain course of action and made decisions about how the case was to be conducted in April and May 2007. Irrevocable physical changes having now been made to the acquired land, the Applicants cannot respond adequately to the matters which the Respondent is attempting to get into evidence by its motion.

7 It is no answer to the issues raised by the Applicants to argue that the orders made by Talbot J on 3 August 2007 provided for a motion to be put on if evidence in reply was considered necessary. The Respondent’s Notice of Motion should be dismissed. I will reserve the question of costs.

8 If the Respondent considers there is utility in asking a hypothetical question of Mr Molinari concerning the scope and cost of an intrusive testing regime on the relevant site, as discussed in the course of argument, that can be considered but must be done in a timely way.

Notice of Motion of First and Second Respondents

9 I have not had to hear argument about a Notice of Motion dated 30 August 2007 filed by the First and Second Applicants also listed for hearing today. I note that the parties have agreed consent orders in relation to that which I consider it is appropriate I make, being orders 6, 7 and 8.

Orders

10 The Court makes the following orders:

1. The Respondent's Notice of Motion of 30 August 2007 is dismissed.

2. Costs of the hearing on the Respondent's Notice of Motion of 30 August 2007 are reserved.

3. The Respondent is to serve any proposed question to be put to Mr Molinari by 12 pm on 12 September 2007.

4. The First and Second Applicants are to use their best endeavours to advise the Respondent whether any proposed question under Order 3 is contested by 5 pm on 12 September 2007.

5. The matter is listed for mention before Pain J at 9:30 am on 13 September 2007.

6. By 4 pm Monday, 10 September 2007, a copy of this order is to be forwarded to Dr Kevin Mills and, further, that by 4 pm Friday, 14 September 2007, Dr Mills provide a response to the parties to the following matters:

(i) In relation to your conclusions in paragraph 34 of your Statement of Evidence concerning the construction of a road through the Conservation Area, identify with greater particularity what weight, if any, you place on the existence of the Grey-headed Flying-fox community, and the associated camp site.

(ii) In relation to your conclusions in the first bullet-point in paragraph 35 of your Statement of Evidence concerning the conservation value of the Conservation Area, identify with greater particularity what weight, if any, you place on the existence of the Grey-headed Flying-fox community, and the associated camp site.

7. That the First and Second Applicants’ motion filed 30 August 2007 be adjourned for mention on Friday, 21 September 2007.

8. The parties have liberty to re-list the matter before a Judge on two days notice.