A & M Green Investments Pty Ltd v Albury City Council [2012] NSWLEC 50

Land and Environment Court New South Wales

Medium Neutral Citation: A & M Green Investments Pty Ltd v Albury City Council [2012] NSWLEC 50 Hearing dates: 16 March 2012 Decision date: 16 March 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Hearing date vacated. Catchwords: PRACTICE AND PROCEDURE:- application to vacate hearing date in order that respondent council may consider a development application which, if approved, would dispose of the proceedings. Legislation Cited: Albury Local Environmental Plan 2000 Category: Interlocutory applications Parties: A & M Green Investments Pty Ltd (First Applicant) S & K Green Investments Pty Ltd (Second Applicant) Albury City Council (Respondent) Representation: COUNSEL: Mr G Laughton SC (Applicants) Mr M Seymour (Respondent) SOLICITORS: Pogson Cronin (Applicants) Kell Moore (Respondent) File Number(s): 41247 of 2011

EX TEMPORE Judgment 1This is a motion by the applicants to vacate the hearing date of 21 March 2012, which is next week. 2In these proceedings the applicants seek a declaration that the respondent, Albury City Council, is obliged to acquire certain land of the applicants under the Albury Local Environmental Plan 2000. Consequential orders are also sought. 3The applicants contend for a construction of this instrument that the Council can be compelled to acquire the land if the Council refuses development consent. The Council contends that this is erroneous and that it is under no obligation at all to acquire the land. 4The basis of the application to vacate the hearing is that late last year the applicants lodged a development application for recreation facilities on the land, which would be an adjunct to a retirement village on adjoining land also owned by the applicants. If that development application or a variant were to be approved, then, as a practical matter, that would dispose of the substantive proceedings leaving only the question of costs potentially outstanding. 5The applicants and the Council are negotiating amendments to the development application which may make it acceptable to the Council. It is possible that the Council would be able to make a decision on an amended development application at its meeting on or about 24 April 2012, although it may not be able to do so until the Council's next meeting on or about 28 May 2012. It appears that there is a realistic prospect that an amended development application will be consented to. 6In these circumstances, I am persuaded that it is appropriate to vacate the hearing date and stand over the proceedings to Friday 27 April 2012 before the list judge for directions. At the request of the parties, I will also reserve the costs of the notice of motion. 7The orders of the Court are as follows: 1.Order that the hearing date of 21 March 2012 be vacated. 2.The costs of the applicants' notice of motion filed on 13 March 2012 are reserved. 3.The matter is stood over to Friday 27 April 2012 before the list judge for directions. 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. Decision last updated: 20 March 2012