DOE v COGENTE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE JA 20 November 1997 [1997] NSWCA 90 Cole JA There is before me on thc callover, matter number 40568/97. Associated with that appeal are two further appeals, numbers 40198/97 and 40733/97. I understand that last week an application was made that the three appeals be heard together and that the three appeals be expedited. That matter came before Powell J and his Honour has reserved his consideration of that matter. I am informed by the Registrar that Powell J has indicated that he is content if I deal with the application for the three matters to be heard together and the application that they be expedited. The three appeals arise out of one set of circumstances. In essence there are a number of properties which have a right of way over an adjoining property. One of the parties sought to develop the adjoining property which is subject to the burden of the right of way. A number of persons having the benefit of that right of way objected to that development. That led to litigation in the Land & Environment Court and to two pieces of litigation in the Equity Division. It was a condition of development consent that there be a s88E instrument to accommodate the capacity of either council or the developer to attend and service a piping structure which was desired to be put under the land which is subject to the right of way. It has been contended, apparently, that the s88E instrument, which was so provided, was not a proper s88E instrument but there is a decision of the Equity Division contrary to that contention. An injunction was sought, apparently to restrain the development proceeding over the right of way, but there is a decision of the Equity Court rejecting that application. There is also a contention that the condition of the development consent that there be a valid s88E instrument has not been satisfied and thus the consent is at risk, but there is a decision contrary to that contention. No application for a stay is made in respect of any of the judgments, perhaps because each was unsuccessful I have been informed that absent such a stay, the development has proceeded. The piping structure is in fact in place underground under the right of way and significant brick work has been carried out as part of the development. It is against that background that a submission has been put that these three matters should be heard together and should be expedited. I have no doubt that they should be heard together but in the circumstances where no application for a stay or earlier application for expedition has been made and the development has, to a significant extent proceeded, I can see no basis upon which this Court should, in accordance with its decision in Elders, grant expedition. 2 UNREPORTED JUDGMENTS The three matters accordingly will be heard together. They will go into the general list. The application for expedition is refused and I will give the three matters an estimate of one day. The parties should take the appropriate steps to file the necessary red books and other books.