Land and Environment Court New South Wales Medium Neutral Citation: Zheng, Xiao Ping v Hurstville City Council [2013] NSWLEC 1183 Hearing dates: 26, 27 September 2013 Decision date: 27 September 2013 Jurisdiction: Class 1 Before: Hussey C Decision: Motion to dismiss proceedings dismissed. Application to vacate allowed. Application to amend adjourned. Catchwords: Practice and Procedure - Notice of Motion for dismissal of proceedings and concurrent application to vacate and amend development application Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Wakim v Tadros [2011] NSWSC 308 Category: Procedural and other rulings Parties: Zheng, Xiao Ping (Applicant) Hurstville City Council (Respondent) Representation: Mr K Webber (Applicant) Mr M Cotton (Respondent) File Number(s): 10162 of 2013 Judgment Background 1This matter relates to a Notice of Motion for the s 97 appeal proceedings for a property at 4 Clarendon Road, Peakhurst to be dismissed. The appeal was lodged against Council's refusal of a development application for a four-unit with basement car parking development under State Environmental Planning Policy (Affordable Rental Housing) 2009. 2The appeal commenced by way of a s 34 Conference in May 2013 and consideration was given to the threshold issue of flooding and associated planning issues of overdevelopment, character and amenity and compliance with BCA provisions. 3The s 34 conference has been adjourned on several occasions to allow the Applicant to arrange and complete the 2D modelling of the catchment in order to assess the flooding impacts. Directions were given regarding the timetable for completion of the outstanding information with the matter being re-listed for hearing on 27 September 2013. 4Just prior to this it became apparent that the flood study had been delayed and subsequently the Applicant was intending to amend the application in response to the flooding results. Following the filing of the subject Notice of Motion for dismissal, at the commencement of the listed hearing on 27 September, the Applicant filed Notices of Motion for the hearing date to be vacated and to amend the application. Accordingly, these applications had been considered together. In this regard, I note that the Applicant somewhat belatedly agreed to payment of costs thrown away. Determination 5I have considered the affidavit and submissions regarding the motion for dismissal. Having been involved with the carriage of the appeal through the s 34 process until today's listed hearing, I understand that there have been significant delays, which involved resources and probably causes Council some frustration. 6However, Mr Webber now submits for the applicant that it is prepared to give an undertaking for costs assessed or agreed, considering then the circumstances of case. 7The cause of the delay has been the preparation of a flood study for the catchment area within which the site is located. Whilst an initial flood study was found to be inadequate, the applicant subsequently agreed to undertake a more detailed 2D Flood Modelling investigation. 8I understand this is a more involved exercise and requires input of detailed data including accurate ground levels and location of flowpath restrictions along the watercourse. This then enables assessment of the flooding characteristics at the site and establishment of appropriate flood levels so that the level of risk to persons and property can be assessed. 9From my observations at the view, it appears that the waterway is located at the rear of the property, which is the source of any flooding. This waterway has a significant sized creek area with banks in the order of 2-3 m. Just downstream of the site, the waterway is controlled by a large culvert under Clarendon Road, which influences flooding on the subject property. 10Accordingly, I consider that this waterway/floodpath forms part of the major drainage component of the drainage system, rather than a minor component, which usually covers smaller stormwater pipes and OSD systems. 11Good drainage practice would seem to include the preparation of an overall drainage strategy for catchment areas, particularly where increased density of development is allowed and has occurred in the immediate vicinity of the proposal to ensure flooding risk is contained at an acceptable level. 12But despite the size of this adjacent waterway there is apparently no available drainage strategy in this long established residential area. Furthermore, the drainage criteria filed with the Court mainly refers to the minor drainage criteria and individual OSD policy. It does not mention strategic drainage practice in terms of the establishment of flood planning levels from extensive flood modelling undertaken applicants. 13It therefore seems to me that in this case, the applicant has been required to undertake a significant component of the drainage strategy investigation for this catchment, which has been undertaken in conjunction with Council's engineers. 14Unfortunately this has taken longer than anticipated, however I accept that it has involved the expenditure of considerable resources for the investigation of a major component of Council's drainage system. 15In these circumstances, with the applicant's assurance that the flood study is now completed and some responsive amendments are required to the design, I think it reasonable and in the public interest to further adjourn the matter to allow the amendments to be undertaken so the appeal process can be completed by hearing and determining the merits of the DA appeal. 16I note Mr Webber's submissions regarding the authority in Wakim v Tadros [2011] NSWSC 308, where at para 27: 27 The application is pursuant to rules 12.7 and 14.28 of the UCPR, which provides: 12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit. and 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 28 In exercising this power, the Court must to take into consideration the particular circumstances causing the delay and consider the overriding purpose of the CPA and the UCPR, that is, the just, quick and cheap resolution of the real issues in the proceedings (section 56 CPA ). The court must also have regard to the CPA 's complementary provisions, namely the objects of case management (section 57) and the dictates of justice (section 58): 17In summary then, I think it would be unreasonable to dismiss this appeal at this stage despite the slowness in completing the flood study and I do not consider that this causes Council any particular prejudice that cant be remedied with a separate costs order, which the applicant agrees to. 18Nevertheless, the timetable for completion of the matter must now be expedited. 19According to the notice of motion filed on 24 September 2013 to dismiss the proceedings is itself dismissed and today's hearing is vacated. Court orders 20The Court orders that: (1)The Applicant's Order No 5 in the Notice of Motion of 27 September to vacate the hearing date of 27/9/2013 is allowed. (2)The balance of the Orders in the Notice of Motion (27/9/2013) is adjourned until 22/10/2013. (3)The Respondent's Notice of Motion (24/9/2013) to dismiss the subject proceedings is dismissed. (4)The Applicant is to serve all amended plans/reports by 11/10/2013. (5)The matter is stood over for mention at 4.15 on 22/10/2013 (STL). R Hussey Commissioner of the Court 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: 30 September 2013