Smith v Wyong Shire Council and Anor.

[2003] NSWLEC 30

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Land and Environment Court

of New South Wales

CITATION:

Smith v Wyong Shire Council and Anor. [2003] NSWLEC 30

PARTIES:

APPLICANT:
Smith

RESPONDENTS:
Wyong Shire Council and Anor.

FILE NUMBER(S):

40034 of 2001

CORAM:

Bignold J

KEY ISSUES:

Practice and Procedure :- leave to re-open case to rely upon further basis for challenging validity of LEP Amendment-Leave granted upon term that Applicants pay Respondent's costs incurred as a result of the re-opening of case.

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

05/07/02

EX TEMPORE
JUDGMENT DATE :

07/05/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Tomasetti, Barrister

SOLICITORS:
Wilshire Webb
FIRST RESPONDENT:
Mr R K Graham, Solicitor
SECOND RESPONDENT:
N/A

SOLICITORS:
FIRST RESPONDENT
Abbott Tout
SECOND RESPONDENT
Dept Urban Affairs & Planning

JUDGMENT:

IN THE LAND AND

Matter No. 40034 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

5 July 2002

D. SMITH

Applicant

v

WYONG SHIRE COUNCIL

First Respondent

MINISTER FOR URBAN AFFAIRS AND PLANNING

Second Respondent

JUDGMENT

1. This is a Motion by the Applicant in Class 4 proceedings for leave to amend the further amended points of claim that have been filed in these proceedings. The application, in truth, is an application to re-open the case for the purpose of pleading additional points in a case which was heard by me on 17 June 2002, when the proceedings were concluded save for the submissions in reply by the Applicant. Directions were given for those submissions in reply to be served and filed in Court by the end of that week.

2. In the submissions in reply in s 1.5 commencing on page 9 and concluding on page 11, the Applicant advances an argument to the effect that the Local Environmental Plan Amendment which the Applicant’s case seeks to impugn is impugnable on the ground that the s 69 report furnished to the Minister pursuant to the Environmental Planning & Assessment Act (EP&A Act) was factually incorrect, and that the observation is made that if leave to put this submission were thought to be necessary, then that leave was sought.

3. The Solicitor for the first Respondent, the Wyong Shire Council, responded to receipt of those written submissions by raising objection to leave being granted to, in effect, reopen the case. This has given rise to the filing of the Motion which in turn seeks leave to amend the Further Amended Points of Claim.

4. The Applicant has filed in Court today a document noted as the Second Further Amended Points of Claim which includes the additional pleading based upon the content or lack of content of the s 69 report. The Applicant’s Solicitors had been in touch with the Minister who had filed a submitting appearance in the proceedings significantly only after the original Points of Claim which had alleged inadequacy of the s 69 report had been abandoned, in the sense that in the amended points of claim no such claim was continued.

5. This is a matter that the Minister’s Legal Services Branch has noted in its response to the Applicant’s Solicitor’s recent advice indicating that the Applicant was seeking to amend its case, and in effect reopen it. The Minister’s Legal Services Branch letter to the Applicant’s Solicitor of 4 July notes the following:

Given the short notice of the application to amend the points of claim I have not been able to obtain instructions on whether the Minister wishes to make submission on the fresh allegation. In the event that the Court grants the leave sought by the Applicant the Minister reserves his right to make, with leave of the Court, a written submission in response to the allegation, and would seek a period of fourteen days in which to do so.

6. The Applicant has handed up some Draft Directions which it invites the Court to make in the event of leave being given. Those Draft Directions contemplate the re-opening to proceed on the basis of written submissions on the re-opened amended pleading. But as was pointed out in the course of argument, it may be that the Respondents, including the Minister as an erstwhile submitting party, may wish to adduce some additional evidence. I note that the s 69 report is included in the evidence that was tendered to the Court on 17 June 2002.

7. The Council’s Solicitor has appeared today to oppose the exercise in favour of the Applicant of the Court’s discretion to allow re-opening and to allow the amendment. In support of its opposition, it has tendered correspondence passing between the Solicitors in this litigation, going back to June 2001. That correspondence certainly indicates that the Applicant’s Solicitors had the opportunity to inspect documents, both those of the Council and those of the Minister, during the litigation history. It includes the statement in the Minister’s Legal Services Branch letter to the Applicant’s Solicitor, that the records of the Department indicated that the Department’s files, including the s 69 report had been made available to the Applicant on 11 May 2001 pursuant to an application under the Freedom of Information Act.

8. The Applicant relies upon the evidence of the affidavit of Jennifer Denise Smith, Solicitor employed by the Applicant’s Solicitor and assisting the partner in this particular case since she joined the firm in November 2001. Another Solicitor in that office had charge of the case on behalf of the Applicant under the supervision of the same partner, but she left the firm at that time last year. Miss Smith’s affidavit indicates that she has examined a multitude of files pertaining to this case kept in her office and was unable to find a copy of the s 69 report in those documents.

9. As I say, the s 69 report was tendered on 17 June 2002 as an additional document to be added to Exhibit 1, which contained a number of documents. The case that was presented has been very much a documentary case and it should be noted that in the exhibit that I have referred to, the bundle of documents originally compiled, the s 69 report was not included, but it was apparently included when a copy was obtained on the morning of the hearing on 17 June 2002.

10. Although I cannot be sure whether or not the Applicant, through its Solicitors, had earlier access to the s 69 report than before the hearing day on 17 June 2002, I am satisfied that the interests of justice require leave to be given to the Applicant to reopen the case for the purpose of amending his points of claim to allege invalidity of the relevant Local Environmental Plan Amendment upon a different basis or an additional basis to those argued on 17 June 2002, namely the errors of fact, material errors of fact, are alleged in the s 69 report that went to the Minister prior to his making of the Local Environmental Plan Amendment. However, the amendment is made very late in the piece and involves a reopening, and the Respondents, including the erstwhile submitting Minister should be indemnified against unnecessary costs incurred as a result of the belated amendment and reopening of the case.

11. Accordingly, I grant leave to the Applicant to reopen the case and to rely upon the Further Amended Points of Claim filed in Court today upon terms that the Applicant pay the costs reasonably incurred by the Respondents in consequence of the reopening of the case and the amending of the Points of Claim.

12. Directions will be given, generally in accordance with the document handed up by Counsel for the Applicant as amended in the manner that I have suggested in the course of argument. Leave is given to deliver those amended directions to my chambers today and I will make those directions in chambers.