Strathfield Municipal Council v C and C Investment Trading Pty Ltd
[2018] NSWLEC 17
•19 February 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Strathfield Municipal Council v C & C Investment Trading Pty Ltd [2018] NSWLEC 17 Hearing dates: 19 February 2018 Date of orders: 19 February 2018 Decision date: 19 February 2018 Jurisdiction: Class 4 Before: Moore J Decision: At [24]
Catchwords: APPLICATION FOR ADJOURNMENT - Notice of Motion seeking vacation of Class 4 hearing dates - Class 4 proceedings expedited - concurrent Class 1 proceedings - failed s 34 conference in Class 1 proceedings - no dates fixed for Class 1 hearings - no evidence as to why basis for expedited Class 4 proceedings had changed - application for adjournment dismissed Legislation Cited: Environmental Planning and Assessment Act 1979, ss 96, 121B Cases Cited: Strathfield Municipal Council v C & C Investments Trading Pty Ltd [2017] NSWLEC 155
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335Category: Procedural and other rulings Parties: Strathfield Municipal Council (Applicant)
C & C Investment Trading Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
Mr R White, barrister (Applicant and Respondent on Motion)
Mr J Doyle, solicitor (Respondent and Applicant on Motion)
Houston Dearn O’Connor (Applicant and Respondent on Motion)
Doyles Construction Lawyer (Respondent and Applicant on Motion)
File Number(s): 316656 of 2017 Publication restriction: No Decision under appeal
- Court or tribunal:
- Land and Environment Court of New South Wales
- Jurisdiction:
- Civil
EX TEMPORE Judgment
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HIS HONOUR: The Notice of Motion that is before the Court this morning seeks an adjournment of the Class 4 proceedings until after the determination by the Court of two sets of Class 1 proceedings, being:
First, an appeal against the refusal by Strathfield Municipal Council (the Respondent on the Motion) of an application to modify a development consent given for the purposes of a boarding house, where unauthorised work, said to be contrary not only to the development consent but also to the construction certificate plans, has been carried out;
Second, an appeal against an order made pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (the EP&A Act).
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Both those Class 1 proceedings are also before me.
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The s 96 modification application was set down for a conciliation conference before Dixon SC on 8 February 2018, with that conciliation conference being unsuccessful and being terminated by the Senior Commissioner.
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That matter was set down, together with the order appeal, before the Registrar on 15 February 2018 to set further hearing dates for the Class 1 matters. For reasons I do not need to explore, at no fault of C & C Investment Trading Pty Ltd (the Applicant on the Motion), the matter was not set down on that occasion.
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The Class 4 proceedings are now sought by the Applicant on the Motion to be adjourned until after the Class 1 proceedings are heard and determined.
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Although there has been a deal of discussion about possible other Notices of Motion, in one or both of those Class 1 proceedings, such Notices of Motion are not before me this morning. The matter that I am dealing with is simply the question of whether the Class 4 proceedings should be adjourned until after the Class 1 proceedings have been dealt with.
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The position, as I understand the listings within the Commissioners’ diary, is that hearing dates for the Class 1 proceedings, should they remain travelling together and to be heard together (at a trial length of three days or so), are unlikely to be allocated for a Commissioner before the beginning or middle of July of this year.
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The Class 4 proceedings are set down for a hearing within a very short period of time from now.
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The fact that the Class 4 matter is to be heard in the present timeframe arises as a consequence of the decision of Sheahan J in Strathfield Municipal Council v C & C Investments Trading Pty Ltd [2017] NSWLEC 155, a decision given by his Honour on 22 November 2017 in these Class 4 proceedings.
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There are two matters to be observed in my consideration of his Honour's decision.
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First, at [26] to [28], his Honour sets out the issues that the Respondent on the Motion raises in the Class 4 proceedings, and the disavowal by that Respondent of there being any fire risk or physical danger, but the assertion by that Respondent that there are adverse amenity impacts on the neighbourhood and legal challenges to the occupation certificate upon which the Respondent on the Motion appears to have relied in letting the units in the development. His Honour noted that the Applicant on the Motion proposed to defend the validity of that certificate in the proceedings.
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His Honour was considering whether or not he should grant interlocutory relief in the form sought by the Respondent on the Motion or in some other form. His Honour set out, at [32], his conclusion that:
The substantive proceedings should be expedited and determined as quickly as the Court can practically accommodate them.
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His Honour sent the parties to obtain dates; those are the dates which are the subject of my consideration this morning.
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His Honour set out, at [33], an interlocutory regime to apply to the premises that are the subject of the Class 4 proceedings and the Class 1 proceedings. His Honour set out a number of restrictions that apply to the First and Second Respondents in the proceedings, and they are set out to operate until further order of the Court. They are set out in Orders (1) to (3) made by his Honour.
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His Honour expressly determined that it was appropriate, on the basis of the evidence then before him, that the proceedings be expedited.
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In terms of preparation for the Class 4 hearing, I observe that this motion was before Robson J on 9 February 2018, where his Honour set the motion down for hearing and made directions, setting a timetable for the filing and serving of evidence in reply by the Respondent on the Motion and any further evidence in reply by the Applicant on the Motion.
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The Respondent on the Motion has, it is acknowledged, in these proceedings, filed expert evidence in the Class 4 proceedings. From the Respondent on the Motion’s position, as I understand it, the proceedings are ready for trial.
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There is no evidence presently before me to demonstrate why the position that was before his Honour has changed during the intervening period.
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Indeed, the sole substantive evidence that is before me this morning is an affidavit by Mr Giglio, a Compliance Officer employed by the Respondent on the Motion, who gave evidence that the unauthorised works, as set out in (6) of his affidavit, remain in place, unaltered.
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I am obliged to consider whether it is appropriate to vacate the hearing of the Class 4 proceedings, in circumstances where the Respondent on the Motion says that it is ready to be heard, or whether it is appropriate to defer the hearing of the Class 4 proceedings until sometime that would be after a decision was given, after hearings in, in all likelihood, July of this year.
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The position is that, when the matter comes on for hearing in Class 4, it does not automatically follow that the relief being sought by the Respondent on the Motion will be granted, even if the case against the developers has been established in its entirety. The principles of the exercise of discretion, pursuant to s 124 of the EP&A Act, will then become engaged and the guidance given by the decision of the President, in setting out principles for the exercise of that discretion, in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, will require to be considered.
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The Respondent on the Motion has already persuaded Sheahan J that it is appropriate to expedite the proceedings. That was done, in circumstances when, as set out, the Applicant for the adjournment of the Class 4 proceedings had already had, on foot, Class 1 proceedings seeking to address the refusal of the s 96 modification application and the issuing of orders pursuant to s 121B of the EP&A Act.
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His Honour, despite that timetable, was persuaded that the Class 4 proceedings should be expedited. His Honour, in those circumstances, was mindful of the fact that the conciliation conference was set down for 8 February 2018. His Honour was also mindful, by necessary implication, of the fact that, if the conciliation conference was unsuccessful, the further hearing of the merits of either of the Class 1 matters was unlikely to take place prior to the Class 4 proceedings set down to be heard. Nonetheless, his Honour, on the basis of the substantive evidence then before him, reached the conclusion that it was appropriate to set the matter down in Class 4 on an expedited basis.
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There is nothing before me this morning that would persuade me that that reasoning was inappropriate.
Orders
The motion is dismissed; and
The Applicant on the Motion is to pay the Respondent on the Motion's costs of the motion.
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Decision last updated: 20 February 2018
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