Land and Environment Court of New South Wales CITATION : Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2007] NSWLEC 304 APPLICANT Walker Corporation Pty Ltd PARTIES : RESPONDENT Sydney Harbour Foreshore Authority FILE NUMBER(S) : 30024 of 2003 CORAM: Talbot J KEY ISSUES: Practice and Procedure :- Whether further hearing to proceed on reserved pending High Court appeal DATES OF HEARING: 29/05/2007 DATE OF JUDGMENT: 31 May 2007 APPLICANT Mr Webster SC SOLICITORS Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT Mr Galasso SC SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 31 May 2007 30024 of 2003 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority JUDGMENT 1 Talbot J: Following two appeals to the Court of Appeal from earlier decisions of this Court, the High Court has now granted leave to appeal in respect of both decisions by the Court of Appeal. It is not expected that the High Court appeals will be heard prior to dates set aside in June for a hearing on the latest remitter of the matter to this Court by the Court of Appeal. As the issues to be argued in the High Court relate only to the prospect of a residential zoning being in place or relevantly imminent at the date of resumption, it is submitted by the applicant that the Court should use the dates in June to determine issues not decided in the first instance, namely the value of the resumed land at the date of acquisition on each of: a) The basis of existing use rights b) The basis of State Environmental Planning Policy No. 5 – Housing for Older People or People with a Disability [SEPP 5] and c) An industrial basis. 2 When this Court originally determined the amount of compensation based on a zoning that permitted residential development of the land, it did not proceed to determine the value on the alternative bases mentioned above, as there would be no perceived utility in doing so. 3 Contrary to the Applicant's submissions, the Respondent has filed a Notice of Motion seeking orders that:- 1. The hearing dates of 25 to 29 June be vacated. 2. Justice Talbot disqualify himself from hearing and determining the remitted hearing of this proceeding. 4 Mr Webster SC, on behalf of the Applicant, contends that there will be a utility in the Court determining the value of the land on the alternative bases because the determinations do not depend upon the outcome of the argument in the High Court. I am not convinced that this is necessarily the case. For example, although the Court may be able to determine compensation based upon the value of the land relying upon existing use rights, nevertheless there is a foreshadowed argument that there will be added value for the prospect of the land being rezoned to permit residential development. The same prospect exists in respect of the value determined on a use reflecting the effect of SEPP 5 or the industrial use in accordance with the current zoning. 5 I am also concerned that the remitter to this Court by the Court of Appeal, at least in part, has been rendered nugatory pending determination by the High Court. The primary task of this Court is to determine the market value of the land according to its highest and best use. Until the High Court makes a decision, it is not feasible to ascertain the highest and best use. Accordingly, if the hearing was to continue in June, it would be an exercise of cherry-picking parts of the case which ultimately may have no bearing on the outcome in terms of the amount of compensation payable to the Applicant. 6 I understand the argument that there are utilitarian reasons why it would be convenient and sensible to take an opportunity to resolve the identified issues while I am still available to hear the proceedings, bearing in mind that extensive evidence has already been adduced before me particularly at the first hearing. The counter to that argument is that special arrangements may be possible for the remitted hearing to be before me after the High Court delivers judgment or alternatively for another judge to rely on the documentary evidence and transcripts where appropriate. 7 There is of course a real risk that a further appeal to the Court of Appeal may be generated as a consequence of any hearing in June, thereby setting off a further train of litigation that may ultimately prove to be an exercise in futility. Obviously it would be presumptuous to attempt the predict the outcome in the High Court for the purpose of taking account of the possible eventualities at a hearing in June. So far as I am aware the High Court has not previously considered the Just Terms legislation. 8 Although the arguments in relation to the apprehension of bias to be propounded by the Respondent have not been articulated, Mr Galasso SC acknowledges that it will depend upon the outcome in the High Court whether that prayer for relief is pursued in the event that I continue to hear the matter. 9 Mr Galasso rightly points out that the dates in June were originally fixed contingent upon the refusal of leave by the High Court so that a final hearing could take place and judgment delivered, before the end of August, based upon the undisturbed decisions of the Court of Appeal. In that sense the order sought by the Applicant is not strictly correct as the setting of the dates was contingent upon the outcome of the leave application. 10 Moreover, Mr Galasso submits that the remitter to this Court by the Court of Appeal may be overtaken by events if the High Court appeals are successful, because:- a) The effect could be the reversal of the decisions of the Court of Appeal or either one of them, leaving or reinstating either (or both) of the decisions of this Court at first instance. b) The effect may be for a qualified remitter or, on the factual findings, made the High Court may substitute orders. 11 In either of the above cases there may be no remitter. 12 Mr Galasso also raises the important issue of costs that may be incurred unnecessarily if the June hearing dates are maintained. He says that it is beyond reasonableness and fairness to force a Respondent to a hearing on issues, which in the circumstance of the matters set out above may not require a remitter. The costs burden alone is sufficient to vacate the dates. 13 Having regard to the whole of the circumstances, I am not satisfied that there would be sufficient utility in proceeding to determine the issues identified by the Applicant in June that would justify the costs of a five day hearing. What is more, I am not convinced that the hearing will necessarily be completed in five days. The generation of the prospect of yet further appeals to the Court of Appeal, including the possibility of a challenge to the Court's jurisdiction to consider the nominated issues pending the decision of the High Court, adds weight to the Court's decision not to agree to the Applicant's request. Finally, I am not convinced that the Court would necessarily be in a position to isolate the determination of compensation on the alternative basis identified by the Applicant in the absence of a final determination by the High Court. 14 I have therefore decided to vacate the dates 25 to 29 June 2007 and to adjourn any further hearing of the matter until 14 days after the High Court makes a final decision. In the meantime, either party has liberty to apply on seven days notice. 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.