Smith & Anor v Wollondilly Shire Council & Sydney Catchment Authority [2004] NSWLEC 194

Land and Environment Court of New South Wales

CITATION : Smith & Anor v Wollondilly Shire Council & Sydney Catchment Authority [2004] NSWLEC 194 Robyn Lillian Amy Smith (Appl) PARTIES : Silas Barry Sonter (Appl) Wollondilly Shire Council (Resp) Sydney Catchment Authority (Intervenor) FILE NUMBER(S) : 11333 of 2003 CORAM: McClellan CJ Practice and Procedure :- Intervenor KEY ISSUES: Statutory body representing the Crown Prejudice to other party Development appeal LEGISLATION CITED: Land and Environment Court Act 1979 (NSW) Sydney Water Catchment Management Act 1998 (NSW) CASES CITED: Vanadi Pty Ltd v Leichhardt Council (1994) 85 LGERA 87 DATES OF HEARING: 7 April 2004 EX TEMPORE 04/07/2004 JUDGMENT DATE :

T I Cork (Appl) McPhee Kelshaw (Solicitors)

LEGAL REPRESENTATIVES: C Drury (Intervenor - Sydney Catchment Authority) Phillips Fox (Solicitors)

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11333/03

McCLELLAN J

WEDNESDAY 7 APRIL 2004 SMITH & ANOR Applicant v WOLLONDILLY COUNCIL Respondent Judgment

Introduction

1 This matter came before me this morning on the application of the Sydney Catchment Authority seeking permission pursuant to s 64 of the Land and Environment Court Act 1979 (NSW) to intervene in these proceedings. The application was opposed by the applicant in the class 1 appeal. When the matter was called on, I asked the solicitors for the parties to indicate to me the position which they adopted with respect to the status of the Sydney Catchment Authority. It seemed to me that if the Authority was the Crown, then s 64(1) provided for the Authority to appear in that proceeding as of right. 2 Mr Drury, who appears for the Authority, provided a copy of the Sydney Water Catchment Management Act 1998 (NSW) which, by s 6(2), provides that the Authority is a statutory body representing the Crown. Mr Cork, who appears for the applicants in the class 1 appeal, conceded that in light of the statutory enactment the Authority was relevantly the Crown for the purposes of s 64(1) of the Land and Environment Court Act. I that event, I am satisfied that the Authority is entitled to appear in these proceedings to protect its interest in the matter. 3 Mr Cork complains that if the Authority is to appear, his client could be significantly prejudiced. The proceedings have been on foot for some time and they have been fixed for a hearing commencing on 20 April, with the hearing estimated to take two days. If evidence is now provided by the Authority, Mr Cork is fearful that his clients will not have an opportunity to respond to it within time, the hearing may be prejudiced and further time will be lost before the matter is resolved. 4 Mr Drury, appearing for the Authority, has accepted the burden of filing the evidence of the Authority by the close of business tomorrow and points to the fact that there will then be at least five working days, plus a number of public holidays over the Easter period, available to the applicants to prepare evidence in response. He does not seek, and could not reasonably seek, that the response be available on any given day and it is possible that it may not be received until the evening before the hearing. If that is a difficulty for the Authority then it will have to be accepted by it because its late intervention is the cause of that problem should it emerge. 5 At the end of the day, the applicants in the class 1 proceedings do have the protection, should it be necessary, of the possibility of an order for costs. I am not suggesting that the conduct of either party gives rise at this stage to a justification for such an order but, as the parties are aware, the Court's rules have recently been amended to provide that an order for costs may be made in class 1 proceedings if the Court is satisfied that it is fair and reasonable to do so. 6 Accordingly, having regard to all of those matters, I will make order 1 in the motion. I will not make orders 2 and 3. In my opinion they are unnecessary. I appreciate that Pearlman CJ made some orders to similar effect in the matter of Vanadi Pty Ltd v Leichhardt Council (1994) 85 LGERA 87. However, the view I hold is that the right of the Crown is provided by the statute and cannot be constrained by any order of the Court. However the Crown, by seeking to be a party to proceedings in this Court, must obviously accept the obligations which flow from the Court's statute, its rules and practice directions. It is unnecessary for me to say anything further in relation to that aspect of the matter. However, I will make order 4 in the motion, which provides that the Authority is to file any statement of evidence by the close of business on 8 April 2004. 7 For those reasons I make orders 1 and 4 in the notice of motion. **********