Land and Environment Court of New South Wales CITATION : BlueScope Steel Limited v Hurstville City Council & Anor [2008] NSWLEC 207 APPLICANT BlueScope Steel Limited PARTIES : FIRST RESPONDENT Hurstville City Council SECOND RESPONDENT Ace Gutters Pty Ltd FILE NUMBER(S) : 40652 of 2008 CORAM: Sheahan J KEY ISSUES: Interlocutory Relief :- LEGISLATION CITED: Land & Environment Court Act 1979 CASES CITED: Ace Gutters Pty Ltd v Hurstville City Council [2008] NSWLEC 1204 Fatsel Pty Ltd & Anor v ACR Trading Pty Ltd & Anor (No.3) (1987) 64 LGRA 177 DATES OF HEARING: 7 July 2008 EX TEMPORE JUDGMENT DATE : 7 July 2008 APPLICANT Mr J A Ayling SC SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: FIRST RESPONDENT Mr P Rigg, Solicitor of Deacons SECOND RESPONDENT Mr J Robson SC SOLICITORS Herbert Geer JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 7 July 2008 40652 of 2008 BlueScope Steel Limited v Hurstville City Council and Ace Gutters Pty Ltd EXTEMPORE JUDGMENT 1 His Honour : These Class 4 proceedings assert, and seek to have more emphatically enforced, the contention of an objector in part-heard Class 1 proceedings between the two Respondents (Matter 10026 of 2008) that the proposal the subject of those proceedings is prohibited by the relevant LEP. 2 As those Class 1 proceedings are listed before Commissioner Bly today, as a part-heard conference under s.34 of the Land & Environment Court Act 1979, the Class 4 application seeks interlocutory relief in the form of a stay of the Class 1 proceedings or their deferral (to some degree) until the Class 4 proceedings have been determined. 3 Commissioner Bly published a judgment on 29 May 2008 – Ace Gutters Pty Ltd v Hurstville City Council [2008] NSWLEC 1204 – refusing the Class 4 Applicant's Notice of Motion to be joined as a party to the Class 1 proceedings pursuant to s.39A of the Land & Environment Court Act 1979. 4 BlueScope's contention that the current development application involves "prohibited development" was put squarely to the Court on that Notice of Motion. 5 Today BlueScope's counsel, Mr Ayling SC, expresses the ongoing concern of his client that that issue may not be "properly litigated" if the s.34 process runs its course, especially if the matter is finalised under s.34(3). As Mr Rigg points out on Council's behalf, it is not yet clear how the s.34 process will unfold and conclude. The only issue before me for determination at this stage is whether the Commissioner should be allowed to continue with the s.34 process, which is already well advanced. 6 BlueScope is perfectly entitled to bring this application. It openly acknowledges that it comes before the Court as a commercial competitor of the Class 1 applicant. It does no more than assert its ongoing concern that the Council may not adequately represent its interests. The Council is not, however, obliged to do more than adequately put before the Court the company's position on relevant issues, including various merits issues as well as the permissibility question, even if its own position does not coincide totally with that of the company. 7 As Commissioner Bly pointed out (at [15]), this Court on a Class 1 appeal has to ensure the subject matter of the contested development application is "permissible" under the relevant instrument, and I accept his view that the issue can appropriately be resolved in the appeal before him. The comments in his judgment disclose his clear understanding of the questions involved in that crucial issue. I need hardly add that I am very confident in the ability of the learned and experienced Commissioner to deal with all the other, mostly merits related, issues before him in the case. 8 I accept Mr Ayling's submission that the facts of this case have much in common with those in Fatsel Pty Ltd & Anor v ACR Trading Pty Ltd & Anor (No.3) – see the Court of Appeal's decision reported at (1987) 64 LGRA 177, especially at 180, 185-6 per Kirby P – but the issue of interlocutory relief in this matter raises specific questions of its own. 9 The permissibility or otherwise of the proposed development is, indeed, a serious issue to be tried, but it is currently being tried, appropriately, in the Class 1 proceedings. 10 The interests of the Class 4 applicant have clearly been placed before, and remain before, the Commissioner dealing with those proceedings. In this current application I cannot predict, anticipate or foreclose on, a particular outcome, and I have no obligation to create a "risk free environment" for any party or objector involved in those proceedings. 11 No basis for interlocutory relief of the nature sought has been made out, so the application for it is refused. The costs of this Notice of Motion are reserved, and the substantive Class 4 application is referred back to the Registrar for appropriate case management. 12 The s.34 conference process can continue immediately, before Commissioner Bly in Court 3A. 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.