SCHAFFER CORPORATION LTD v EGAN AND ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 19 October 1992 [1992] NSWCA 223 Mahoney JA This is an application arising in relation to an appeal from a judgment given by Pearlman J on 4 September 1992. The matter relates to a quarry operation being carried on within the municipality controlled by the Hawkesbury City Council. The company has a consent for carrying on (I shall describe them without prejudice in this way) quarrying operations. The consent will expire in August 1993. It first applied for what was, in effect, an extension of that authority in April 1990, and proceedings have been continuing in one form or another since that time. It has sought - again I put the matter in general terms and perhaps somewhat inaccurately - a fresh consent which will extend the operation of its present consent for a period of some ten years. In due course the council agreed to give such a consent, and the effect of the decision of Pearlman J was to confirm that consent so that there would be, from about the expiration of the present consent, a further consent allowing operations to be carried on for a period of some ten years. (I emphasise I have put the matter in general terms. It is sufficient that I do so. The precise details are not, I think, determinative of the present matter). The grant of the further consent has been opposed, inter alia, by a body described in the Notice of Appeal as "East Kurrajong Residents and Owners Environmental Protection Association". I infer from what Mr Tamberlin has said that his clients are representative of various objectors who have taken objection. It may be that, on the environmental merits, the extension of the operation of the quarry should properly be opposed. That is not a matter upon which I have any evidence, nor do I express any opinion in relation to it. But after a hearing lasting a number of days, the Land and Environment Court decided to give the relevant consent. It is, as I have said, in respect of that consent that the present appeal has been brought. The appeal is limited to questions of law. The company has applied to the court for expedition of the hearing of the appeal. I am entitled to know that if no order for expedition is made the appeal will in all probability not be heard until some time in 1994. At least it is doubtful, to say the least, that it will be heard and disposed of prior to August 1993. That seems to me to be one of the crucial facts in relation to the matter. I confine what I have said to the unobjected portions of the affidavit of Mr Webster filed in this matter. Upon the basis of that material it would appear, and may be inferred, that faced with the expiration of its existing consent in August 1993 the company and those who are associated with it in the operation of the quarry legitimately require some degree of certainty as to what the future of the area will be and that they require that a significant time before August 1993. Miss Hewitt for the council has submitted that the council is entitled to have, as she put it, a continuity in relation to the area and the development of it. The fact is that unless some degree of expedition is given, the appeal will be unlikely to be determined or finally determined by August 1993 or by a date prior to that which will enable 2 UNREPORTED JUDGMENTS the company in the ordinary course to make appropriate arrangements in relation to its business affairs and the affairs of those working with it or employed by it or them. In all the circumstances, I think it is appropriate that some degree of expedition be granted. Tam conscious of what Mr Tamberlin has said in relation to the time which has already passed since the company's first application. I am conscious that on the one hand, as has been suggested by the argument of Mr Hale for the company, the details and intricacies of planning law can sometimes be used to defeat applicants merely by exhausting them. Sometimes proceedings can be drawn out in such a way that in the end a person entitled to consent will not proceed to obtain it, merely because of the persistence of the objections that have been taken. On the other hand, I am conscious of the suggestion which, I think, is implicit in what Mr Tamberlin has said, that appropriate grounds must be shown before the company or any other appellant is given the priority in hearing over the appeals already in the list. Balancing all of the considerations, I am of the opinion that it is appropriate in this case that an appropriate degree of expedition be given. I will direct that the hearing of the appeal be expedited. I would contemplate that it would be appropriate that the appeal be heard some time in the first quarter of next year and that the parties should prepare appropriately for such a date for hearing. In view of what has been said, I do not give any indication myself of what the length of the hearing will be. One would have thought that in an application such as this, which has been thoroughly sifted in the Land and Environment Court, the relevant issues of law could be reduced to appropriate proportions. The court would expect that the parties will file detailed written submissions prior to the hearing of the matter. That should assist in the reduction of the matter to an appropriate length. Of course, if it were thought that either party had extended the hearing of the case beyond what was appropriate, then an appropriate order for costs could be made, notwithstanding whatever may be the outcome of the proceedings. It is then, in my opinion, appropriate that expedition be ordered of the kind to which I have referred. The court would invite and expect the co-operation of the parties in relation to the finalisation of the appeal papers and the preparation of written submissions. It would seem appropriate that the costs of this application be costs in the appeal, unless counsel have anything to say to the contrary. The order for costs will be costs in the appeal.