Land and Environment Court of New South Wales CITATION : Arrawarra Beach Pty Limited v Coffs Harbour City Council [2006] NSWLEC 153 APPLICANT Arrawarra Beach Pty Limited PARTIES : RESPONDENT Coffs Harbour City Council FILE NUMBER(S) : 10014 of 2006 CORAM: Jagot J KEY ISSUES: Practice and Procedure :- Notice of motion by third party LEGISLATION CITED: Environmental Planning and Assessment Act 1979 cl 123 DATES OF HEARING: 16/03/2006 EX TEMPORE JUDGMENT DATE : 03/16/2006 APPLICANT A Pearman SOLICITORS (Nil) LEGAL REPRESENTATIVES: RESPONDENT G Fernie (Solicitor as agent for) SOLICITORS MBT Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 16 March 2006 10014 of 2006 ARRAWARRA BEACH PTY LIMITED Applicant COFFS HARBOUR CITY COUNCIL Respondent JUDGMENT Jagot J: Introduction 1 This is a class one appeal, appealing against a deemed refusal by the Coffs Harbour City Council ("the Council") of an application to modify a development consent relating to the Arrawarra caravan park. The application was lodged with the Council on 1 December 2005. The application to modify the consent sought approval for removal of approximately 45 trees said to be dangerous and to pose a threat to park users. 2 Ms Pearman (who appears for the applicant) informs me that she understands that agreement has been reached or is close to having been reached between the applicant and the Council with respect to approval of the modification application. 3 Mr Fernie appears as agent for the Council's solicitors and has not indicated anything different from the information provided to me by Ms Pearman. Ms Pearman has submitted to me that final determination of the application is urgent because the trees in question are dangerous. The trees have been in that condition for some time, but have been cordoned off from the users of the camping ground. Apparently, there is a stumbling block to the resolution sought to be achieved between the applicant and the Council. 4 On 1 March 2006, a letter was forwarded to the Court from an organisation called Rates, Levies and Development Association Inc (the "Association") attaching what was described as a third party application under cl 123 of the Environmental Planning and Assessment Act 1979. The attachments contain a document styled a notice of motion seeking orders as set out in attachment "B". The orders in attachment "B" seek, amongst other things, that a certain approval dated 17 November 2005 be declared null and void on various grounds; makes allegations of inadequate information being provided to Councillors and dereliction of duty; makes allegations with respect to inadequacy of information relating to what I understand to be the present application to remove the trees and otherwise make assertions relating to preservation of those trees in perpetuity; seeks orders for the acquisition of those trees to form part of the Coffs Coast Regional Park; the rezoning of the land to environmental protection and the purchase of that land by a marine park authority or by the State government. 5 The motion is accompanied by an affidavit sworn by Barry Ronald Lee on 1 March 2003 which asserts that the development application (which I understand to be a modification application) is misleading and inaccurate and based on inaccurate information and is contrary to the objects of the Environmental Planning and Assessment Act 1979. 6 The matter was apparently listed before the Court for a telephone callover on 6 March 2006 following which the Court sent a facsimile to the Association noting that the notice of motion had not been served. 7 Thereafter, on 14 March 2006, the Association forwarded a facsimile to the Court providing details of service of the notice of motion and a letter dated 14 March 2006 saying that they had received a letter from Arrawarra Beach Pty Limited on 10 March 2006 advising that it was necessary for the Association to appear before the Court on 16 March 2006 and further stating: We advise that no advice has been received from the Court with a request for a court appearance. We also advise that no direction has been received from the Court advising Rates, Levies and Development Association of being a party to the proceedings. Would the Court please advise the current status of the proceedings and if the Court could be kind enough to notify the applicant to stop from making further demands. We look forward to your reply. 8 As noted, this relates to a letter from Arrawarra Beach Pty Limited dated 10 March 2006 which I infer was received by the Association. That letter states that: The Registrar advised both myself and the solicitor for Coffs Harbour City Council that your organisation's motion would be listed for hearing before a Judge of the Land and Environment Court of New South Wales in Sydney on Thursday, 16 March 2006. Your organisation will need to have representation on that day otherwise it may be heard in your absence. 9 The letter continued: On our behalf we will be asking the Court next Thursday to dismiss your application and if we are successful, we will seek an order for you to meet payment of our legal costs. 10 The letter concluded with a recommendation that, as the matter is now listed before the Court for hearing, it would also be in the Association's best interests to seek independent legal advice. 11 The applicant's representative, Mr Shanahan, also sent an email to the Council on 10 March 2006 noting that it might be necessary or appropriate for the Council to send the Association a note as well advising of Council's instructions. The Council did so on 15 March 2006. That letter stated that: The proceedings relate to a condition of a development consent. The matters raised by the notice of motion appear to relate to the development consent itself and in such circumstances we consider the notice of motion wholly unmeritorious. Accordingly, we will be seeking a dismissal of your notice of motion and if successful an order that you pay the respondent's legal costs associated with the notice of motion. Conclusion 12 I have considered the submissions which are jointly made by the two parties appearing today, namely the parties to the proceedings, the applicant and the Council, both of whom seek an order for dismissal of the motion. The only matter which raises any potential concern in my mind is the course of the correspondence in this matter, culminating in the letter dated 14 March 2006 from the Association Inc noting that, after receipt of the letter from the applicant dated 10 March 2006, they had not received advice from the Court with a request for a Court appearance. 13 The course of correspondence in this matter appears to have engendered some confusion. The parties to these proceedings are the applicant and the respondent. The Association is not a party to the proceedings. Its motion does not seek to be joined as a party. A person in the position of the Association cannot, by forwarding a facsimile to the Court, give itself some status in the matter which it does not have. Further, the orders sought by the Association are not orders which the Court is capable of making in these proceedings in any event. 14 In this sense, the motion has no status before the Court (even though the correspondence referred to above appears to have assumed that it does have some status). However, certain practical considerations are in play. Apparently, the application must be referred to a full Council. There is some concern that, while the motion remains on foot in any form, the application to remove the trees (which is said to be urgent) will not be dealt with by the full Council. 15 Ms Pearman has expressly submitted that there is no reasonable cause of action disclosed in the motion, that the relief it seeks is otherwise frivolous or vexatious (and, in that sense, an abuse of process of the Court) and that therefore I am able to dismiss the motion summarily. 16 I consider the notice of motion to be incompetent. To that end, I am prepared to make orders today (irrespective of the fact that the person moving on the notice of motion is not present today) dismissing the motion. Orders 17 The Court makes the following orders: (1) Order that the notice of motion dated 1 March 2006 filed by Rates, Levies and Development Association Inc be struck out. (2) The question of costs with respect to the notice of motion dated 1 March 2006 filed by Rates, Levies and Development Association Inc be reserved. (3) The applicant and the respondent are to confer and agree the terms of a letter which the applicant shall forward to Rates, Levies and Development Association Inc on or before 23 March 2006 informing that body of the orders made today. The letter is to be forwarded by registered mail and by facsimile to numbers 02 6649 4886 and 02 6653 5532. **************************** 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.