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. Consideration 1. In regard to the Applicant's first point. I agree with the Council that there has been ample time for the Applicant to amend the proposal in regard to wall height. I was not convinced there was anything material arising from the expert report, or otherwise, that suggests special circumstances had arisen in this matter. There was no material evidence on the particulars of how the issue of wall height may be resolved by the revised plans. 2. In regard to the Applicant's second point, I would note that the current COVID related societal problems are in a way ubiquitous. There is no certainty when the situation might resolve for the better to allow normal processes to resume. For the Court, a case-by-case approach to case management is required mindful of the Court's COVID-19 Pandemic Arrangements Policy (April 2021). 3. In the particulars of this case, I am not convinced that there is unreasonable prejudice brought upon the Applicant should the Court not attend the adjoining residential apartments for an in-person inspection of view loss. There are two principal reasons for this. First is the fact of the photomontage work undertaken which has been adopted by the experts as accurate (Joint Expert Report filed 30 July 2021, par 7.1). Second is that the experts have essentially agreed on the extent of view loss impact (ibid par 7.4). That is, the main point of contention in regard to view loss is the fourth principle raised in, the well referenced case in regard to this topic, Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140. This fourth principle, is the principle where an in-person inspection on the Court's part is of least need in my opinion. 4. There are many, generally aligned, authorities which assist in directing the manner in which the Court might approach an application to vacate hearing dates. Here I reference the findings of Robson J in RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) [2019] NSWLEC 141 who at [26], in turn referenced Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13], where Ward JA summarised the appropriate approach to be adopted by Courts to adjourn or vacate hearings as follows: "The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the Applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court." 1. Council contested the motion. The prejudice caused to it (prepared as it would need to be for a forthcoming hearing), were the listing vacated, has not been justified by the Applicant. As indicated above, in the circumstances of this case, I am not convinced that there is unreasonable prejudice brought upon the Applicant should there be no inspection from adjoining properties in regard to view loss. There is also the further matter of the waste of public resources with the vacation of dates so close to hearing and the effect that may be occasioned on other litigants seeking listings in the Court's system (see Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No. 3) [2019] NSWLEC 142 at [7]). 2. The Court orders: 1. The Notice of Motion filed 3 August 2021 is dismissed. ………………………. Peter Walsh Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2021