JPR Legal Pty Ltd v Marrickville Council [2008] NSWLEC 279

Land and Environment Court of New South Wales

CITATION : JPR Legal Pty Ltd v Marrickville Council [2008] NSWLEC 279

APPLICANT JPR Legal Pty Ltd

PARTIES : RESPONDENT Marrickville Council

SUBPOENA'D PARTY Royal Exchange Hotel

FILE NUMBER(S) : 10459 of 2008

CORAM: Sheahan J

KEY ISSUES: Practice and Procedure :- (1) subpoena - reasonable expenses - when payable - determination of amount; (2) issues at hearing

CASES CITED: In the matter of Bauhaus Pyrmont Pty Ltd (in liquidation) [2006] NSWSC 253 Waugh Hotel Management v Marrickville Council [2007] NSWLEC 775

DATES OF HEARING: 30 September 2008

DATE OF JUDGMENT: 1 October 2008

APPLICANT Ms V Culkoff SOLICITORS JPR Legal

RESPONDENT LEGAL REPRESENTATIVES: Mr G Christmas, solicitor of Marrickville Council

SUBPOENA'D PARTY (Royal Exchange Hotel) Ms F Berglund SOLICITORS HPL Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Sheahan J

1 October 2008

10459 of 2008 JPR LEGAL PTY LTD v MARRICKVILLE COUNCIL

JUDGMENT

Introduction 1 His Honour: This matter comes before the Duty Judge on reference from the Registrar. Hearing dates on 10 and 11 September were vacated, and case management has continued. The parties are now in dispute about the ambit of issues to be addressed in the appeal, and the Applicant is in dispute with several organisations to which it has directed subpoenas for production of documents. Background 2 The relevant proposal before the court on appeal is for alterations and additions to premises at 252-254 Illawarra Road, Marrickville with a view to their use/development as a hotel. An earlier, relevantly similar application was refused consent on appeal to this court by Jagot J (with Hoffman C) on 27 November 2007 – see Waugh Hotel Management v Marrickville Council [2007] NSWLEC 775. That decision has gone on appeal to the Court of Appeal, and the appeal apparently is expected to be heard on 13 November 2008. 3 The Council contends that this current DA is "99%" the same as the earlier one, but the Applicant contends in its Statement of Environmental Effects that the new DA addresses the concerns raised in the court's November 2007 decision, and that local circumstances in which this DA is to be considered have relevantly changed since November 2007. How much they have changed is a matter of dispute. 4 The major grounds for the earlier refusal by the court were "inadequate provision of parking and unacceptable social impacts of the development in the locality". The "significant material change in the locality" since the earlier decision is the closure of an RSL Club some 300m from the subject site. There remain, open and trading, at shorter distances from the subject site – "within an easy stroll" as one objector says – the Marrickville Tavern and the Royal Exchange Hotel. 5 The case has proceeded towards hearing with each party having its own social impact expert, and with Craig McLaren engaged as the Parties' Single Expert on the parking issue. 6 Council has filed its bundle of documents (26 August), its Draft Conditions (28 August), its Statement of Basic Facts (3 June), and its Amended Statement of Contentions (7 July). Among the Contentions (at pars 1(f), 1(g) and 2(e)) are the following: "1(f) The only materially different circumstance between the current development application and the development application finally determined in the first proceedings is that the Marrickville RSL has since closed. 1(g) The only issue arising in these proceedings in relation to parking is whether in light of the closure of the Marrickville RSL the development can now provide adequate parking to meet its demand. 2(e) The only issue arising in these proceedings in relation to the risk of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community is whether in light of the closure of the Marrickville RSL this would no longer be an independent ground for refusing the development application."