David Kettle T/As David Kettle Consulting v Gosford City Council & Ors. [2005] NSWLEC 579

Land and Environment Court of New South Wales

CITATION : David Kettle T/As David Kettle Consulting v Gosford City Council & Ors. [2005] NSWLEC 579

APPLICANT: David Kettle T/As David Kettle Consulting

RESPONDENTS: Gosford City Council PARTIES : INTERVENORS: V Azzopardi & Ors.

FILE NUMBER(S) : 10429 of 2005

CORAM: Bignold J

KEY ISSUES: Development Application :- Class 1 proceedings—Whether Intervenors should be permitted to litigate in proceedings issues concerning existing use entitlements—held not appropriate

LEGISLATION CITED: Land and Environment Court Act 1979, s 38

DATES OF HEARING: 07/10/2005 EX TEMPORE JUDGMENT DATE : 10/07/2005

APPLICANT: Mr P Tomasetti, Barrister

SOLCITORS N/A

LEGAL REPRESENTATIVES: RESPONDENT: Mr M Fraser, Barrister INTERVENORS Ms C Kardell, Solicitor

SOLICITORS P J Donnellan & Co INTERVENORS Ms C Kardell, Solicitor

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

7 OCTOBER 2005

10429 of 2005 DAVID KETTLE T/as DAVID KETTLE CONSULTING v GOSFORD CITY COUNCIL; V AZZOPARDI & ORS.

JUDGMENT 1 HIS HONOUR: The Court has before it two Motions, one filed by the Council and one filed by the Intervenors in respect of two issues that had been raised in class 1 proceedings, and which by order made by myself in a case management role at the same time as giving leave pursuant to s 39A of the Land and Environment Court Act 1979, for the Intervenors to be joined as a party, excluded two of the issues in the final Statement of Issues prepared by the Intervenors from the adjudication of the case by the Commissioner allocated with the responsibility of hearing and determining the case. 2 As it turned out after a contested hearing Commissioner Moore on 29 September 2005 delivered an extempore judgment upholding the appeal subject to the imposition of appropriate conditions and gave the parties directions for the preparation and submission to him of the required conditions by Thursday of next week. 3 In his decision he acknowledged that his adjudication had not touched issues 3 and 4 in the Statement of Issues which were the issues that I expressly reserved from his adjudication. Issues 3 and 4 raised the question of whether the Applicant before the Commissioner possessed the requisite existing use entitlements in order to sustain the grant of any further development consent in respect of the application before the Court (which was for an intensification or expansion of an existing water extraction and bottling activity undertaken at the Applicant's premises). 4 In reserving those issues from the Commissioner's required adjudication I had directed that his adjudication proceed upon the assumption that a relevant existing use entitlement was available to the Applicant, and I assume that the case was conducted before the Commissioner upon the basis of that assumption. The assumption was founded upon the solid facts of the known longstanding history of the operation tracing back at least as far (or beyond) the grant of the development consent by this Court in 1998. 5 Following the announcement of his extempore judgment the Commissioner adjourned the reserved issues 3 and 4 to the Registrar's callover the following day, and on that occasion the Registrar referred the matter to the Duty Judge who gave directions in relation to those issues including the contemplation of the Council filing a Notice of Motion seeking to strike out the reserved issues which was made returnable before a judge of the Court today. Directions were given by the Judge for the filing of evidence and the making of written submissions in relation to the Council's Motion. The Council has duly filed and tendered a bundle of relevant documents (which has become Exhibit 1 in the proceedings) which include the relevant consent granted by the Court in 1998 and a predecessor consent granted by the Council in 1994 related thereto. 6 In addition to the Council's Motion that I have before me, I have the Motion filed by the Intervenors, with my leave made returnable today, seeking the setting aside of the orders made by Justice Talbot last Friday and seeking in lieu thereof a set of directions in the case contemplating the deferral of the requirement for the Intervenors to indicate to the other parties and the Court whether they wished to pursue issues 3 and 4 (ie the reserved issues) until they, the Intervenors, had had the opportunity to consider the terms of the conditions of the development consent which Commissioner Moore expects the parties, including the Intervenors, to prepare and to submit to him by Thursday of next week. His directions include the opportunity for the matter to be re-listed before him in the event of discord or disagreement between the parties as to the terms of the conditions of consent.