Land and Environment Court New South Wales Medium Neutral Citation: Adbooth Pty Ltd v The Council of the City of Sydney [2023] NSWLEC 1777 Hearing dates: 20 November 2023 Date of orders: 27 November 2023 Decision date: 27 November 2023 Jurisdiction: Class 1 Before: Froh R Decision: The Court orders: (1) The notices of motion are granted. (2) Telstra Limited is awarded its costs of its motion. (3) Adbooth Pty Limited is awarded its costs of its motion. Catchwords: NOTICE OF MOTION Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 2007, r 3.7 Category: Procedural rulings Parties: Adbooth Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: J McKelvey (Applicant) N Hammond (Respondent) Solicitors: Norton Rose Fulbright Australia (Applicant) Maddocks (Respondent) File Number(s): 2023/26310 Publication restriction: Nil JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. REGISTRAR: Two notices of motion were listed before me on 20 November 2023. The first notice of motion was filed by Telstra Ltd seeking to set aside an amended subpoena issued to it by the Council of the City of Sydney (the Council) filed on 4 October 2023. 2. The second notice of motion was filed by Adbooth Pty Limited (Adbooth) which sought to set aside a notice to produce issued to it by the Council filed on 5 October 2023. 3. The substantive proceedings are Class 1 merit review proceedings brought by Adbooth against the Council's deemed refusal of a development application to replace 38 existing Telstra phone booths with new phone booths with digital advertising panels around the Sydney Local Government Area (DA). 4. It should, at this point, be noted that there is general agreement that the terms of the notice to produce and subpoena are drafted on near identical terms and call for similar categories of documents. 5. It is accepted by all parties that the grounds on which the notice to produce can be set aside are the same grounds as the subpoena and that the Applicant and Telstra seek to set aside the subpoena and notice to produce for essentially the same reasons. 6. Paragraphs 1, 2 and 3 of the subpoena and notice to produce are the same so I will consider these categories of documents together. 7. Paragraph 1 seeks production of agreements between the Applicant or JC Decaux and Telstra relating the use of payphones for third party advertising. 8. This category of documents lacks apparent relevance to the issues in the proceedings set out in the statement of facts and contentions. 9. It was put to me by Council that as it has been particularised in Council's contention that as Council's interests would be undermined, the documents sought are relevant to that issue. 10. I disagree. The terms of the contract are not relevant to the consequences alleged by Council and not relevant to the assessment of the DA. 11. Paragraphs 2 and 3 seek production of documents relating to how payphones were selected or rejected for inclusion in the DA. 12. There is no apparent relevance between these documents and an issue in dispute in the proceedings. 13. A site not being chosen for development or a site being chosen for development and how that selection is made, is also not a consideration in the assessment of the DA. The DA is not required to be assessed against a hypothetical alternative development. 14. Paragraph 4 of the subpoena seeks production of documents identifying the location of all Telstra payphones in the Sydney Local Government Area. 15. I do not see how this is relevant to an issue raised in the statement of facts and contentions and repeat again my findings that it does not go to a matter to be taken into consideration in the assessment of the DA under the Environmental Planning and Assessment Act 1979. 16. Under paragraph 5 of the subpoena, the Applicant is seeking production of documents on the frequency of the use of each of the payphones the subject of the DA. Similar to my previous findings, I cannot ascertain any apparent relevance for the production of these documents to an issue in dispute between the parties. 17. The Applicant states that they are required for the correct characterisation of the development. However, I disagree. The scope of the development is as set out in the DA. Payphone assets are largely regulated by the Commonwealth, so their use and frequency of their use, I do not consider to be relevant to an issue between the parties. 18. Paragraph 6 of the subpoena and paragraph 4 of the notice to produce seeks documents developed in the course of designing the new phone booths. It is put to me by the Respondent that the design of the new phone booths is relevant to contentions 2, 3, 4, 5, 6 and 7 and the impact of the new phone booths on streetscape, pedestrian movement, traffic flows and character. 19. I agree with this submission. However, the paragraph does not just call for the design of the proposed new phone booths – it calls for all the documents that went into the development of the proposed design and various standards developed and applied by Telstra and the Applicant. I cannot see how the production of such documents would assist on an issue in dispute between the parties. 20. For these reasons, I consider it appropriate to set aside the notice to produce and the subpoena. 21. Telstra and the Applicant have both sought costs of their motions. 22. Although I have found against the Council, regarding its notice to produce and subpoena, I must now consider whether it is fair and reasonable to make an award for costs under r 3.7 of the Land and Environment Court Rules 2007. 23. Telstra is not a party to these proceedings, and in my view, did not have any other option other than to seek orders setting aside the subpoena issued to it. 24. As such, I consider it fair and reasonable to award Telstra its costs of the motion. 25. Similarly, with Adbooth, there is uncontested evidence before me that Adbooth objected to the notice to produce over the course of a number of months and several detailed letters. Its objections to the notice to produce detailed in those letters are largely the same submissions made to me through the course of this hearing. 26. Again, it is my view that Adbooth was left with no option but to seek to set aside the notice to produce and incur those costs. 27. As such, I find it fair and reasonable to award Adbooth its costs of the motion. Orders 1. The Court orders: 1. The notices of motion are granted. 2. Telstra Limited is awarded its costs of its motion. 3. Adbooth Pty Limited is awarded its costs of its motion. S Froh Registrar 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: 19 December 2023