Land and Environment Court of New South Wales CITATION : Wollondilly Shire Council v Antoun [2010] NSWLEC 154 APPLICANT Wollondilly Shire Council PARTIES : FIRST RESPONDENT Simon Abou Antoun SECOND RESPONDENT Bechara Hanna Saad El Skaf FILE NUMBER(S) : 40312 of 2010 CORAM: Pepper J KEY ISSUES: PRACTICE AND PROCEDURE :- application to vacate hearing dates - respondents no longer owners of property upon which alleged unlawful structures present because bank now mortagee in posession - summons sought relief specifically against respondents - bank has legitimate expectation of being given an opportunity of being heard - vacation granted. LEGISLATION CITED: Civil Procedure Act 2005 s 56 Environmental Planning and Assessment Act 1979 ss 76A, 121B, 121H, 121Y CASES CITED: Vilro Pty Ltd v Roads and Traffic Authority of NSW [2010] NSWLEC 141 DATES OF HEARING: 16 August 2010 EX TEMPORE JUDGMENT DATE : 16 August 2010 APPLICANT Mr T Howard SOLICITORS LEGAL REPRESENTATIVES: Hones La Hood RESPONDENT No Appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 16 August 2010 40312 of 2010 Wollondilly Shire Council v Simon Abou Antoun and Bechara Hanna Saad El Skaf EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: This is an application made on behalf of Wollondilly Shire Council ("the council") to vacate the hearing of this matter set down on 17 and 18 August 2010. 2 There was no appearance by the respondents (the matter was called outside three times). However, given that the respondents have failed to appear thus far in the proceedings, this was not surprising. As a consequence, the application proceeded on an ex parte basis. 3 Although applications to vacate, especially those made the day before the hearing is due to commence, are not to be made lightly, the circumstances of this application dictate that the vacation be granted. This is because a critical fact underpinning the proceedings has now changed due to no fault of the council. Evidence of the Council 4 In support of the application the council relied on an affidavit of Mr Ben Swain, a solicitor in the employ of Hones La Hood, the solicitors for the council. 5 Mr Swain stated that on 4 August 2010 he received an email from the council that attached a number of documents including a notice that the Bank of Western Australia ("the Bank") had taken possession of the property the subject of Class 4 proceedings as the mortgagee in possession. Previously the respondents had been the registered proprietors of the property. 6 The Class 4 proceeding allege breaches of the Environmental Planning and Assessment Act 1979 ("the EPAA") specifically against each of the respondents because of the carrying out, or the authorising of the carrying out of development without development consent in circumstances where consent was required, contravening s 76A of the EPAA. 7 The development consists of the erection of an open steel framed structure in a flood prone area at the northern end of a property known as 300 McKee Road, Theresa Park (Lot 66 in DP 258766) ("the property"). Further it includes the erection of a corrugated iron extension to an existing corrugated iron shed located behind an existing dwelling house on the property. 8 Both structures constitute development which can only be carried out with consent under the provisions of the Wollondilly Local Environment Plan 1991 ("the LEP"). 9 The summons specifically seeks that the respondents remove the structures on the property. 10 Notwithstanding correspondence sent to the respondents by the council and the issuing of a number of notices of intention to serve orders and orders under s 121B of the EPAA requiring the demolition and removal of the structures, the structures have remained on the property. 11 Mr Swain deposes that because there is now a mortgagee in possession of the property and that any orders obtained were unlikely to be complied with, the council instructed Mr Swain to write to the Bank requesting that it provide an undertaking that it would remove or procure the removal of the alleged unlawful structures from the property. This was done on 4 August 2010. The Bank did not respond to the letter. 12 Accordingly, on 9 August 2010, the council served upon the Bank a Notice of Intention to Issue an Order pursuant to s 121H of the EPAA in relation to the property ("the Notice") on the basis that the Bank was now the owner of the property. The Notice requested demolition and removal from the property of the unlawful structures. The Notice stated that the Bank had until 30 August 2010 to make representations to the council in response to the allegations contained in the Notice. To date there has been no formal response to the Notice. 13 Mr Swain further stated that if the Bank fails to comply with the Notice, then the council will seek an order pursuant to s 121B of the EPAA requiring the removal of the structures and failing compliance with that order, it will either seek to amend the pleadings to join the bank to the proceedings, or discontinue against the respondents and commence new proceedings against the Bank. 14 On the day of the hearing of the application to vacate, Mr Howard, appearing for the council, informed the Court that while no formal response to the Notice has been given by the Bank, discussions have nevertheless taken place between the council and the Bank which could see a final resolution of the proceedings. These discussions are ongoing. Consideration 15 A discussion of the relevant provisions of the Civil Procedure Act 2005 ("the CPA") and relevant authorities that the Court must consider when determining an application to vacate was recently set out by me in the decision of Vilro Pty Ltd v Roads and Traffic Authority of NSW [2010] NSWLEC 141 at [20]-[24]. For the sake of convenience and expediency I adopt that discussion for present purposes. 16 In the present case it is clear that the reason for the vacation has been due to no fault of the council. The fact that the Bank is now the mortgagee in possession of the property is not one that could have been either anticipated or discovered earlier by the council. In addition, it cannot be said that the council has in any way acted without haste in bringing the present situation in which it finds itself to the notice of both the Bank and the Court. 17 Prior to the hearing the council's attention was drawn to s 121Y of the EPAA. It states that: An order [under s 121] given to a person binds any person claiming through or under or in trust for or in succession to the person or who is a subsequent owner or occupier to the person, as if the order had been given to that person. 18 The effect of this provision appears to be that the order given to the respondents to remove the structures binds the Bank as a subsequent owner or occupier of the property. If so, then is a vacation of the hearing necessary? 19 It is for at least two reasons. First, the proceedings as currently pleaded seek specific relief against the respondents. In particular, the summons seeks an order that the respondents remove the unlawful structures from the property. However, given that the respondents are no longer the registered proprietors of the property this order may now be impossible to execute. Therefore, either the pleadings will have to be amended and the Bank joined, or the current claim must be discontinued with new proceedings commenced against the Bank. 20 Second, by reason of the letters and Notice sent to the Bank by the council the Bank now, I believe, has a legitimate expectation that it will be given the opportunity of responding to the allegations concerning the structures. To proceed with the hearing in these circumstances could result in a failure to accord procedural fairness to the Bank. 21 Both reasons militate against a refusal to vacate the hearing. In addition, there is the real possibility that the proceedings may be capable of resolution through ongoing settlement discussions with the Bank. 22 Therefore, in my view, to proceed with the hearing given the changed circumstances the council now finds itself present with would not facilitate the overriding purpose contained in s 56 of the CPA of the "just, quick and cheap" determination of the real issues in the proceedings. The application ought to be granted. 23 However, the proceedings should come back before the Court shortly after 30 August 2010 (the date by which the Bank is to respond to the Notice) for further case management. Costs 24 The council has submitted that costs ought to be reserved. I agree. Precisely who should bear the costs of the application to vacate as between the council, the respondents or possibly the Bank given their failure to respond to any of the council's written communications is, at this stage, unclear. Orders 25 The orders of the Court are therefore as follows: (1) the hearing dates of 17 and 18 August 2010 are vacated. (2) costs of this application are reserved. (3) the matter is set down before me for further case management at 9.30 am on 31 August 2010. ********** 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.