Land and Environment Court of New South Wales CITATION : Grover Pty Ltd v Canterbury City Council [2005] NSWLEC 213 APPLICANT Grover Pty Ltd PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : 10616 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Demolition of an existing house and erection of two attached dwellings LEGISLATION CITED: Canterbury Local Environmental Plan DATES OF HEARING: 23/08/2004, 16/09/2004 and 17/03/2005 EX TEMPORE JUDGMENT DATE : 03/17/2005 APPLICANT No appearance RESPONDENT LEGAL REPRESENTATIVES: Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 17 March 2005 10616 of 2004 Grover Pty Ltd v Canterbury City Council JUDGMENT 1 For the record this is an extempore judgment. This matter has come before me this morning as a part heard matter. This matter first came before me in August 2004. The Court heard evidence, conducted a site inspection and the Court then received advice from the respondent that the draft Local Environmental Plan had been forwarded to the Minister for making, the Minister had declined to make such a plan and as such the Court considered it appropriate in the circumstances of the case at the time on 16 September 2004 to re-open the case to allow the applicant the opportunity of submitting an amended plan. 2 For the description of the proposal I will read from the consultant's report. "The proposal is to demolish an existing dwelling that occupies two existing allotments of land and to build two attached dwelling houses on one of each existing allotments of land. The proposed dwelling houses would be attached by a common wall running along the boundary of the two existing allotments of land." 3 The subdivision pattern in this area of Canterbury is one that there are generally two lots for one dwelling house. It is an historical subdivision pattern where many of the modest dwelling houses were built over two lots of land. Of more recent time there have been a number of redevelopments in the area which includes the development of two dwellings on what was previously a single dwelling but so that each property had a separate title. The Court has also heard a number of development applications in respect of this subdivision area where similar proposals have been made. 4 The application that came before the Court is one that was for two dwellings as I stated. The property is Nos. 52 and 52A Grove Street, Earlwood. The applicant submitted the development application to the council and council considered it was inappropriate in terms of the streetscape and the character of the area and its future vision for the area as contained in its draft Local Environmental Plan which was subsequently not made. The area is one which is rather unique although there are other areas in Sydney, in particular I am aware of Mortdale, where there is a similar situation and redevelopment is occurring in that area as well. 5 The Court, having regard to the circumstances and the circumstances of the fact the draft local environmental plan was not made, which was brought to its attention by the respondent council, considered it was appropriate to allow the applicant at the time to submit an amended development application. The original plan before the Court was one that from a streetscape point of view, in terms of bulk and scale, the Court was of the opinion was not appropriate but nonetheless given the nature of the redevelopment in the area it considered there could be a more sympathetic design still facilitating the redevelopment of the site and that opportunity was afforded to the applicant. 6 Unfortunately the applicant in these proceedings has not appeared today and the Court has attempted, as well as the respondent, to contact the applicant but to no avail. The Court also 'called' for the applicant outside the Court room today and there was no response. 7 The circumstances are that the Court on the basis of the information that has been submitted including the report of the council's officer on the amended plans is of the opinion that the application must be dismissed in the absence of any evidence submitted on behalf of the applicant. 8 It is noted that the applicant had previously engaged a consultant planner and the Court directed at the time of reopening the case in September that consultant planner confer with council's planner and that a joint report be prepared. However the applicant's planner was not in a position to engage in such a joint conference and this was because he had not received payment for his services to date. 9 The solicitors acting for the applicant also advised the Court as of 11 March 2005 that they were no longer acting for the applicant. That is the solicitors Norman Waterhouse Taylor Kelso, Ms Janelle Amy, and the Court has been advised this morning by the respondent's solicitor, Mr Seton, that Ms Amy had sought to communicate with the applicant to advise of the proceedings today. 10 In the circumstances I am satisfied and I accept Mr Seton's submission that the Court should dismiss the appeal. The applicant has been given the opportunity to respond and I agree that the matter should be dismissed. 11 The Court having regard to the Land and Environment Court Rules 1996 (29) concerning the failure of the applicant to attend a hearing. It states that: "If the applicant does not appear at the time and place fixed for the hearing the Court may dismiss the proceedings." 12 I am satisfied that appropriate endeavours have been undertaken to contact the applicant and therefore I will dismiss the proceedings. 13 The orders of the Court are: 1. The appeal is dismissed. 2. Costs are reserved. 3. The matter is listed for call-over Thursday 14 April 2005 for setting of a date for the costs hearing. ____________________ J S Murrell Commissioner of the Court rjs 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.