Land and Environment Court of New South Wales CITATION : Greenfields Mountain Pty Limited v Byron Shire Council [2002] NSWLEC 229 APPLICANT Greenfields Mountain Pty Limited PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 10929 of 2000 CORAM: Talbot J KEY ISSUES: Practice and Procedure :- vacation of hearing dates - setting matter down as a special fixture LEGISLATION CITED: Land and Environment Court Rules 1979 National Parks and Wildlife Act 1974 CASES CITED: DATES OF HEARING: 10/09/2002 EX TEMPORE JUDGMENT DATE : 09/10/2002 APPLICANT Mr J J Webster (Barrister) SOLICITORS Stacks the Law Firm with Halliday & Stainlay LEGAL REPRESENTATIVES: RESPONDENT Mr S M Berveling (Solicitor) SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10929 of 2000 Talbot J 10 September 2002 Greenfields Mountain Pty Limited Applicant v Byron Shire Council Respondent Judgment Introduction 1 HIS HONOUR: It is appropriate to deal with the notice motion filed in Court this morning brought by Byron Shire Council ("the council") seeking, inter alia, an order that these proceedings be dismissed. The council relies on the affidavit of Kirston Marie Gerathy sworn on 9 September 2002 wherein, according to the records available to her, she sets out the history of the matter. I put it in that way because the present solicitors have not always appeared for the council in this matter. 2 It is unfortunate that the matter has dragged on for as long as it has. The applicant lodged an appeal against the granting of a development consent on 28 August 2000. The subject development consent granted permission for the applicant to carry out cane farming as an agricultural use permissible with consent pursuant to the provisions of the relevant environmental planning instrument. The appeal relates to a condition which effectively calls for a buffer between the subject land upon which the cane farming is proposed and an area known as the Billinudgel Nature Reserve. The buffer proposed by the council in the conditions of consent is an area of land 50 metres wide along the common boundary between the subject land and the Billinudgel nature reserve. 3 Following the lodgement of an application class 1 on 28 September 2000, the parties attended a s 34 conference. On 23 January 2001 the s 34 conference did not lead to a resolution of the matter. A further s 34 conference was scheduled, but did not take place. The matter was listed for hearing on 24 and 25 September 2001 notwithstanding an unsuccessful application to vacate the dates. The hearing took place over two days in the Byron Local Court. Commissioner Hussey received written statements of evidence from experts and carried out a comprehensive view of the site. The Commissioner had the benefit of observations made by the respective expert witnesses on-site. 4 The hearing did not conclude in September 2001. A further hearing was set down for 13 and 14 December 2001. Ultimately those dates were vacated, as were further dates appointed for 13 and 14 March 2002. On 21 March 2002 the National Parks and Wildlife Service ("NPWS") served a stop work order. The exact nature of the stop work order has not been fully explained to the Court but it nevertheless clearly had an effect on the activities on the land in connection with the cane farming business. 5 Notwithstanding the issue of the stop work order, further hearing dates for 16, 17 and 18 September 2002 were appointed at a callover on 18 April 2002. Subsequent to that callover the Minister for the Environment issued and served an interim protection order under the National Parks and Wildlife Act 1974 whereby he prohibited the damage or despoiling of the land or any part of the land which would constitute the carrying out of development or the carrying on of any activity including disturbing the surface of the soil, undertaking earthworks, clearing, damaging or destruction of any tree or any other vegetation, application of herbicides or pesticides or the dumping of soil or any other activity that may effect the preservation, protection or maintenance of the natural and cultural heritage value of the land, apart from the injection of banana plants with herbicides for the purpose of destruction of banana plants. 6 Mr Webster submits, on behalf of the applicant, that on its face the interim protection order effectively prohibits the carrying out of any activities that could be associated with cane farming in any part of the land to which the interim protection order applies. The land to which the interim protection order applies, as I understand it, in all practical senses is the same land as the strip of land identified as a buffer in the council's conditions of consent and about which the present applicant has appealed to this Court. 7 In the meantime discussions appear to have been taking place regarding a number of options that could resolve the issues that form the basis for the interim protection order. Mr Webster informs the Court that one of those options could result in the acquisition of part of the applicant's land by the NPWS. There is a prospect that the area around the land constituting the buffer may be released from the constraints imposed by the interim protection order, which was gazetted on 24 May 2002. 8 Although the details of ongoing negotiations are not before the Court in any formal way, the council does not submit to the contrary of the claim made by Mr Webster, namely that discussions are taking place and that they could have the result I summarised above. 9 Prima facie, if one looks at the Court record and the bare facts exposed by Ms Gerathy, the applicant has already been given an extended opportunity and granted indulgences that are not generally made available to applicants who are dilatory in pursuing appeals to this Court. By that I mean that the number of opportunities to finalise the hearing of the appeal are well beyond what is normally expected insofar as the hearing of merits appeals in this Court is concerned. 10 If the circumstances are such that the applicant is complicit in the delay of the final hearing then it clearly would be a case for the Court to respond to the council's application by making an order that the proceedings be dismissed. Mr Berveling points out, on behalf of the council, that even if the proceedings are dismissed that would not preclude the applicant making a further s 96 application. 11 However, I am mindful of the fact that significant preparation has been carried out for the hearing scheduled at the Byron Court House for 16, 17 and 18 September. Not only has expense been involved in that preparation but it may well be that the benefits of the work could be lost if the proceedings were dismissed. 12 It is the Court's view that, having regard to the prospect that the interim protection order might in certain circumstances be lifted insofar as it relates to the strip of land the subject to the council's condition of consent, the effort, time and expense involved in the preparation for the hearing next week may not be wasted. In other words, if the interim protection order was lifted then there would still be utility in the appeal. If, of course, it is not lifted then all utility insofar as this appeal is concerned would be lost. 13 Mr Webster has conceded, on instructions, that if the hearing dates are vacated in accordance with the applicant's notice of motion dated 3 September 2002, his client is prepared to accept responsibility for any costs thrown away by the council as a consequence of the vacation. I do not believe it is essential for him to make this concession but nevertheless it is not inappropriate 14 It is my opinion that the proceedings are at a penultimate stage insofar as the council's application to summarily dismiss the proceedings is concerned. Mr Webster refers to that part of the Land and Environment Court Rules 1979, which provide for summary dismissal. Generally speaking it is only in circumstances where a party fails to prosecute in a diligent and proper manner. 15 I am satisfied there are justifiable grounds for deferring the ultimate hearing of this matter for the time being. I appreciate that the application is made late. That has caused inconvenience to the council and the council's witnesses, not to say anything about the considerable inconvenience caused to the Court after making arrangements for a country hearing. Furthermore, there is the disturbance to the Court list which might have been formulated so that other litigants could have had the opportunity to use the Commissioner's time. 16 It is an unusual case. The circumstances as they have been explained to me today are not wholly attributable to the applicant. Mr Webster has informed the Court that he would be confident that if a further hearing was appointed in two months' time by then his client should be in a position to know the final outcome of the negotiations with the NPWS. Having regard to the state of the list generally in respect of class 1 matters, I know that the matter is unlikely to be listed for further hearing within that time. 17 Mr Webster's client has been the subject of unfortunate circumstances. That does not mean the matter can remain unresolved indefinitely. 18 Although I am not satisfied that it is appropriate at this time for the proceedings to be dismissed, I nevertheless expect that on the next occasion this matter is listed for a hearing the applicant will have to either proceed to finality. Alternatively, even if the position with the NPWS has not improved, it must expect to suffer an order for dismissal or discontinue. 19 During the course of submissions I canvassed the prospect of setting the matter down on the next occasion as a special fixture with all that implies and entails, namely that having been set down for that day it is to proceed on that day unless the matter is dismissed or discontinued in the meantime. The objective the Court will be seeking to achieve is that if the applicant is not in a position to proceed on the next occasion then, necessarily without prejudging the matter, it must recognise that almost inevitably the appeal will be lost. 20 If some fault lies with the applicant in the sense of creating exceptional circumstances most of the prejudice suffered by the council heretofore, if any, can be answered ultimately by an order for costs. 21 Dealing first with the notice of motion dated 9 September 2002 by the council, I dismiss orders 1, 2 and 3. In respect of order 4, I order that the applicant in the proceedings, the respondent to the notice of motion, pay the council's costs in relation to the notice of motion. Orders 5 and 6 are dismissed, for reasons that will become apparent or may already be apparent from the foreshadowing of the order that I propose to make in relation to the notice of motion dated 3 September 2002 filed by the applicant. 22 Moving now to the notice of motion dated 3 September 2002, I make order 1. I order that the applicant pay the respondent's costs in relation to the notice of motion. I order that the applicant pay any costs thrown away by the council by reason of the vacation of the dates 16, 17 and 18 September 2002. I set the matter down for a further hearing for three days as a special fixture at a courthouse to be nominated by the Court in the local area. Finally, I direct that the parties approach the Registrar this morning for the purpose of obtaining the dates for the special fixture. 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.