E J Cooper & Son Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 386

> Land and Environment Court of New South Wales

CITATION : E J Cooper & Son Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 386 PARTIES : E J Cooper & Son Pty Ltd (Appl) Baulkham Hills Shire Council (Resp) FILE NUMBER(S) : 30607 of 2003 CORAM: McClellan CJ KEY ISSUES: Practice and Procedure :- Re-opening LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 s 59 CASES CITED: DATES OF HEARING: 8-12 December 2003 EX TEMPORE JUDGMENT DATE : 12/12/2003

N Hemmings QC/C Leggat (Appl) Marsdens Law Group (Sol - Appl)

LEGAL REPRESENTATIVES: M I Bozic SC/M S Henry (Resp) Matthews Folbigg Pty Ltd (Sol - Resp)

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 30607/03

McCLELLAN J

FRIDAY 12 DECEMBER 2003 E J COOPER & SON PTY LIMITED Applicant v BAULKHAM HILLS SHIRE COUNCIL Respondent Judgment (application to re-open applicant's case)

Introduction

1 HIS HONOUR: During the course of argument in this case, an issue has arisen as to whether or not the applicant is entitled to compensation for disturbance. The claim is for moneys pursuant to section 59 of the Land Acquisition (Just Terms Compensation) Act 1991. 2 During the course of the applicant's case, Mr Camilleri who is the managing director of the applicant company was called. He gave very brief evidence in which he indicated, as I recall it (not presently having access to the transcript), that the company had originally utilised the resumed land for the purpose of intensive poultry farming. 3 However, some five years ago that use ceased and the land has since been used for the purpose of subdivision. So much is plain from the activity which has occurred on adjacent parcels which were not resumed and remained in the applicant's ownership. 4 In the course of giving evidence he also said that the applicant company, with associated companies, is in the business of the purchase and development of land for subdivision. That was the extent of his evidence. There was no evidence given of any present intention to buy further land to replace the resumed land. There was no evidence given as to the relationship between the applicant company and what were referred to as associated companies. It seemed to me and I indicated to counsel in the course of submissions accordingly, that there were significant difficulties in my being able to resolve the issue fairly to both parties. 5 Senior counsel for the applicant has now sought to re-open his case to recall Mr Camilleri to presumably provide further evidence as to the nature of the applicant's business and other matters related to this claim. 6 The application is opposed by senior counsel for the respondent however, senior counsel for the respondent cannot point to any prejudice which the respondent would suffer if Mr Camilleri is recalled. In those circumstances in my opinion, the Court should allow the case to be re-opened so that a fair result or at least one as fair as can be achieved, is capable of being determined. **********