Wyong Shire Council v Australia Skydive Pty Ltd

[2013] NSWLEC 209

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wyong Shire Council v Australia Skydive Pty Ltd [2013] NSWLEC 209
Hearing dates:	06 December 2013
Decision date:	06 December 2013
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Proceedings adjourned to Friday, 7 February 2014 for directions before the List Judge. Liberty to apply on one days' notice.
Catchwords:	PRACTICE AND PROCEDURE - Ajournment of Class 4 Civil Enforcement proceedings pending determination of development application and application to transfer related Supreme Court proceedings to Land and Environment Court.
Legislation Cited:	Environmental Planning and Assessment Act 1979 124(3)(a)
Category:	Procedural and other rulings
Parties:	Wyong Shire Council (Applicant) Australia Skydive Pty Ltd (First Respondent) Tuggerah Lake (R1003002) Reserve Trust (Second Respondent)
Representation:	COUNSEL: B Glendenning, solicitor (Applicant) E Hourigan, solicitor (First Respondent) N/A (Second Respondent) SOLICITORS: Wyong Shire Council (Applicant) Maddocks (First Respondent)
File Number(s):	40934/13

EX TEMPORE Judgment

1. This is a joint application by the applicant and the first respondent to adjourn these Class 4 civil enforcement proceedings to February 2014. The applicant is Wyong Shire Council. The first respondent is Australia Skydive Pty Ltd. The second respondent is Tuggerah Lake (R1003002) Reserve Trust.

1. The Council alleges that Australia Skydive requires development consent to land parachutists on a Crown reserve at Tuggerah known as the Pioneer Dairy Site. The second respondent is a statutory corporation appointed to manage the Pioneer Dairy Site. Australia Skydive disputes that it requires development consent for that activity.

1. Council's summons seeks, among other things, a declaration that the landing of parachutists and the gathering of spectators at the Pioneer Dairy Site in connection with the business of Australia Skydive constitute development within the meaning of the Environmental Planning and Assessment Act 1979 TA \l "Environmental Planning and Assessment Act 1979" \s "Environmental Planning and Assessment Act 1979" \c 2 . Injunctive relief is sought including interlocutory relief but the latter is not pressed at this time.

1. On Council's evidence, Australia Skydive first commenced the skydiving operation in early November 2013. The operation involves parachutists being discharged from an aircraft operated by Australia Skydive so that those parachutists land on the Pioneer Dairy site. The second respondent has consented to the use of the Pioneering Dairy site for that purpose.

1. Australia Skydive transports its parachutists by aircraft from a runway on Council land, which is the site of Warnervale Airport, to a discharge point that allows the parachutists to descend to the Pioneer Dairy site. After discharging the parachutists, the aircraft returns to the Council land. The aircraft passes over residential areas and the Council has received complaints about noise and nuisance created by the flights.

1. Australia Skydive lodged a development application with Council in October 2013 to use an existing shed on the Pioneer Dairy site as a reception area and parachute packing area for licensed skydiving operation. That development application has not been determined. The parties are treating it as having been amended so as to extend to the landing of parachutists on the Pioneer Dairy site. That is without prejudice to Australia Skydive's contention that no development consent is required for the landing of parachutists. It seems desirable that the amendment of the development application be formalised.

1. In the meantime, Australia Skydive has commenced proceedings in the Supreme Court to restrain Council from preventing it from using the airport on Council land for the purpose of Skydive's operations. In the Supreme Court proceedings directions were made on 29 November 2013 for (among other things) pleadings, for the matter to be returnable before the Equity Duty Judge on 12 December 2013, and for any notice of motion for the transfer of those proceedings to the Land and Environment Court to be made returnable before the Duty Judge on 12 December 2013. An interlocutory injunction has been made by the Supreme Court against the Council up to and including 12 December 2013 or further order.

1. The period of public exhibition of Australia Skydive's development application as amended expires, I am told, on 11 December 2013.

1. It is in the above circumstances that both parties seek an adjournment of these proceedings to February 2014.

1. Section 124(3)(a) of the Environmental Planning and Assessment Act 1979 TA \l "124(3)(a) of the Environmental Planning and Assessment Act 1979" \s "124(3)(a) of the Environmental Planning and Assessment Act 1979" \c 2 provides:

(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

...

1. In my view, it is appropriate to adjourn the proceedings to 7 February 2014 for three reasons. First, to see whether the Council grants development consent for, if it does, it will mean the end of these proceedings. Secondly, because of the prospect that the Supreme Court proceedings will in the meantime be transferred to this Court so that they may be dealt with together with these proceedings. Thirdly, because the parties are having discussions which, I am told, have a realistic prospect of resulting in a settlement of these proceedings and the Supreme Court proceedings. It is obviously appropriate, and will assist the Court, if Council determines the development application before this matter returns to the Court on 7 February 2014.

1. The order of the Court is that the proceedings be adjourned to Friday, 7 February 2014 for directions before the List Judge. Liberty to apply on one days' notice.