Trustees of the Christian Brothers (Waverley College) v Waverley Council

[2003] NSWLEC 176

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Land and Environment Court

of New South Wales

CITATION:	Trustees of the Christian Brothers (Waverley College) v Waverley Council [2003] NSWLEC 176
PARTIES:	APPLICANT Trustees of the Christian Brothers (Waverley College) RESPONDENT Waverley Council
FILE NUMBER(S):	10108 of 2003
CORAM:	Talbot J
KEY ISSUES:	Appeal :- review of Registrar's decision - not fully appraised of circumstances to vacate hearing date
LEGISLATION CITED:	Protection of the Environment Operations Act 1997 s 290
CASES CITED:
DATES OF HEARING:	15/07/2003
EX TEMPORE JUDGMENT DATE :	07/15/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr S M Berveling (Barrister) SOLICITORS Carroll & O'Dea RESPONDENT Mr M E McMahon (Solicitor) SOLICITORS ME McMahon & Associates

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10108 of 2003

Talbot J

15 July 2003

Trustees of the Christian Brothers (Waverley College)

Applicant
v

Waverley Council

Respondent
Judgment

Introduction

1 HIS HONOUR: The respondent is seeking a review of “the direction of Acting Registrar Green made on 19 June 2003 not to vacate the hearing of this matter on 1 August 2003”. I suspect that the Registrar may not have been appraised of the full circumstances, and that finally the Court may now have some comprehension as to the real circumstances which exist in relation to this matter, namely that until such time as the council resolves either to accept the plan of management, submitted to it by the applicant, to reject the plan of management submitted to it by the applicant, or to make amendments to the plan of management, the parties are not able to identify what the real issues in the case are.

2 I think it is important to appreciate what Mr Berveling put to the Court, namely that s 290 of the Protection of the Environment Operations Act 1997 requires that the recipient of a noise control notice appeal within 21 days of the receipt of the notice. Otherwise the appeal right is lost. Accordingly, the applicant in these proceedings had no option but to move as it did within 21 days following receipt of the notice on 14 January 2003.

3 The council appears not to have been acceptably diligent by pursuing counsel’s advice in relation to the plan of management. The evidence is that the plan of management was before the council in May but was not considered pending the receipt of counsel’s advice. That advice was not sought until June so that it has not been available to enable the plan of management to be considered at any subsequent meeting of the council.

4 I appreciate that if the council adopts the plan of management the matter has a very good prospect of being settled either on the basis that the council issues an alternative notice, or consent orders are made whereby the plan of management is implemented through those orders. Alternatively, if the plan of management is rejected then the parties may require the assistance of experts, particularly in the acoustics field, to support their respective cases in relation to whether or not the plan of management should be adopted. The same may (but not necessarily) apply if the council resolves to make amendments to the plan of management. Whether acoustic experts are required in the latter case will depend upon the nature of the amendments or variations that the council seeks to impose when it adopts the plan of management.

5 It is apparent that the matter was never ready to be set down and is still not ready for hearing. Indeed, for the reasons that I have just given, the issues cannot be identified even at this time. Given that there is a real prospect that a hearing may not eventually be required at all, or that the matter may be resolved by the making of consent orders, it will be a waste of the Court’s time to maintain the hearing date of 1 August 2003, even though if the Court was minded to take a strict view of the matter it could be litigated. The Court could be asked to deal with, and approve, a plan of management in the light of reports from experts prepared and filed pursuant to an abbreviated timetable.

6 I do not fully understand the reasons why, as it is claimed, the Registrar insisted on the matter being set down for hearing, notwithstanding that both parties explained to her that it was not ready for hearing. I think that I am entitled to infer that the Registrar may not have been assisted by the explanation that I was finally able to extract from the parties during this morning’s hearing, after some close questioning of the legal representatives.

7 In this regard I note in particular that both of the affidavits filed in support of the application to vacate the dates indicated that the reason the dates should be vacated was that the parties would need to spend money on engaging sound experts, whereas it is now clear that it is not inevitable that such experts may be required or indeed that a hearing may be required at all.

8 It is appropriate in the circumstances where I am reviewing the decision of a Registrar to be careful to change the orders, or the situation created by the Registrar, only for a sound and proper reason supported by evidence and submissions. This is a case where I believe that it is in the interest of the Court, and the parties, that the hearing date of 1 August 2003 be vacated. Accordingly, I intend to make orders to that effect.

9 In response to the notice of motion dated 1 July 2003 seeking a review of the Registrar’s order, the Court makes the following orders:-

(1) The order made by the Registrar on 19 June 2003 dismissing the notice of motion dated 12 June 2003 to vacate the hearing date of 1 August 2003 is vacated.

(2) The hearing date of 1 August 2003 is vacated.

(3) The matter is listed before the Registrar for callover on 22 July 2003 at 9:00am