Emcon Group Pty Ltd v Randwick City Council [2021] NSWLEC 1457

Land and Environment Court New South Wales

Medium Neutral Citation: Emcon Group Pty Ltd v Randwick City Council [2021] NSWLEC 1457 Hearing dates: 5 August 2021 Date of orders: 5 August 2021 Decision date: 05 August 2021 Jurisdiction: Class 1 Before: Walsh C Decision: The Court Orders: (1) The Notice of motion filed 3 August 2021 is dismissed. Catchwords: PROCEDURE – Notice of motion – vacation of hearing dates Cases Cited: Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No. 3) [2019] NSWLEC 142 RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) [2019] NSWLEC 141 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Texts Cited: Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021) Randwick Development Control Plan 2013 Category: Procedural rulings Parties: Emcon Group Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: S Hale (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent)

Solicitors: Madison Marcus Law Firm (Applicant) Randwick City Council (Respondent) File Number(s): 2020/350474 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This matter came before me in regard to a Notice of Motion filed by the Applicant on 3 August 2021 which seeks to vacate hearing dates for this Class 1 appeal listed for 9 and 10 August 2021. 2. An affidavit sworn by Sophie Marie Rose Hale on 3 August 2021 was filed on the same day in support of the motion. The affidavit was read with the exclusion of paragraph 18. 3. There were two main points argued by the Applicant. The first was in regard to an intention to amend the design of the building so that it was more in accordance with the external wall height provision under Randwick Development Control Plan 2013. It was indicated, orally, that the Applicant was making a genuine attempt to comply with the control and thus assist in the resolution of the real issues in the proceedings. 4. The second point argued by the Applicant was in regard to the fact that view loss was a central issue in the matter, one of only two remaining issues according to the appointed town planning experts (the other being the topic of external wall height). The Applicant believed it was imperative that the Court take a view from the residential units in the adjoining apartment buildings from which it is contended that the development would have an unreasonable impact in terms of view loss. It was argued that having regard to current "COVID restrictions" it would not be possible to undertake such a view. In particular it was indicated that the Applicant's town planning expert resided in the Georges River Council local government area (an area subject to certain Orders relating to existing incidence of COVID-related cases) and that its Counsel would not be able to attend the adjoining residential units for an inspection due to COVID concerns. It was argued that the Applicant would be unreasonably prejudiced if the Court did not attend the residential units to observe for itself the anticipated view loss, and under current conditions this was not possible. 5. In oral submissions Council objected to the motion. It indicated that the Applicant had had sufficient time to amend the plans to accommodate the external wall height provision and that it was in the interests of just, quick and cheap resolution of these proceedings to accommodate the existing listing dates. It was unknown when COVID restrictions would be lifted. 6. On questioning by me, the Applicant indicated that revised plans and view analysis might take about four or five weeks but a shorter period was possible. It was indicated by Council that experience suggested the pathway may not be as clear as suggested by the Applicant and that it was unknown as to whether revised plans would resolve the issue of wall height and whether the plans would need to be re-notified.