Land and Environment Court New South Wales Medium Neutral Citation: Marshall Rural Pty Ltd v Basscave Limited [2015] NSWLEC 86 Hearing dates: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Class 4 Before: Pain J Decision: 1. The Applicant's Notice of Motion dated 22 April 2015 is dismissed. 2. Costs reserved. Catchwords: PROCEDURE – application for expedited hearing refused Legislation Cited: Civil Procedure Act 2005 s 61 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005 r 2.1 Cases Cited: Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116 Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 Category: Procedural and other rulings Parties: Marshall Rural Pty Ltd (Applicant) Basscave Pty Limited (First Respondent) Hawkesbury City Council (Second Respondent) Argosy Agricultural Group Pty Ltd (Third Respondent) Representation: Counsel: Mr RPL Lancaster SC (Applicant) MR CM McEwen SC (First and Third Respondents) Solicitors: Hall & Wilcox Lawyers (Applicant) Doyle Wilson solicitors (First and Third Respondents) Submitting appearance (Second Respondent) File Number(s): 40313 of 2015 EX TEMPORE Judgment 1. This is a Notice of Motion dated 22 April 2015 filed by Marshall Rural Pty Limited (the Applicant) seeking an order for expedition heard as the duty judge today. The Applicant is seeking as substantive relief in these Class 4 proceedings an order to restrain the use of Basscave Pty Limited's (the First Respondent) property leased by Argos Agricultural Group Pty Ltd (the Third Respondent) for weddings and non-polo functions. The First Respondent's property is located near Richmond and contains Sunnybrook Barn, the Polo Barn and the Grandstand. These proceedings were commenced on 10 April 2015. Both the Applicant and the Respondents operate polo clubs at their respective properties which are next door to each other. The Applicant's complaint does not concern polo functions. Hawkesbury City Council (the Council), the Second Respondent, has filed a submitting appearance. The First and Third Respondents (the Respondents) were represented by the same counsel. Evidence 1. The Applicant read and relied on the affidavits of Mr Bloore sworn 9 April 2015, Mr Kondilios sworn 22 April 2015, Mr Gestel sworn 9 April 2015 and of Mr Wilson sworn 6 May 2015. 2. Mr Bloore is the General Manager of Kurri Burri Polo Club, a division of the Applicant. In his affidavit, Mr Bloore gives evidence of five functions that he observed between 31 January 2015 and 3 April 2015 at the properties owned by the First Respondent that were not listed in the schedule of functions as enclosed in the Council's letter to Mr Wilson, solicitor for the Applicant, of 23 February 2015. 3. Mr Kondilios is a solicitor for the Applicant. To his affidavit Mr Kondilios exhibits "exhibit SK1" which includes a report of the Council ordinary meeting of 31 March 2015. 4. Mr Gestel is a resident of Richmond Lowlands and resides near the properties the subject of these proceedings. He attests to excessive noise from functions on occasions from the First Respondent's land. Weddings on the First Respondent's land commenced five years ago. Over the last three months he has heard one to two weddings per week or six to eight per month. 5. Mr Wilson annexes a letter from the Council enclosing the undertaking of 17 December 2014 given by the Third Respondent, Sydney Polo Club Pty Ltd, and Mr and Ms Higgins to the Council (annexure F). In his affidavit, Mr Wilson states that the second bookings list is inconsistent with the first bookings list provided to the Council and produced by the Council to the First Respondent with its letter of 23 February 2015. 6. The Respondents read the affidavit of Ms Higgins sworn 25 May 2015. Ms Higgins is the Director of the Third Respondent. In her affidavit, Ms Higgins replies to Mr Bloore's evidence concerning additional functions being held noting that on two of the dates concerned no functions were held and in the case of another two dates that the functions were booked subsequent to 10 September 2014 and prior to the undertaking given to the Council in December 2014. Annexure A to Ms Higgins' affidavit is an extract of the Council's ordinary meeting of 12 May 2015 that considered the Council's staff's advice that the Respondents' development applications 0156/15 and 0157/15 concerning Polo Barn and Sunnybrook Barn respectively for temporary use of the existing building for the holding of functions should be approved. 7. The Respondents also read the affidavit of Mr Doyle sworn 30 April 2015. Mr Doyle is a solicitor for the First Respondent. Mr Doyle annexed to his affidavit the undertaking given 17 December 2014 as referred to above (annexure A), a further undertaking given 19 March 2015 by the Third Respondent, Sydney Polo Club Pty Ltd, and Mr and Ms Higgins to the Council (annexure B) and the updated list of functions (annexure C). 8. The undertaking given by the Third Respondent to the Council dated 19 March 2015 states: UNDERTAKING BY ARGOSY AGRICULTURAL GROUP PTY LTD, SYDNEY POLO CLUB PTY LTD, AND PETER AND REBECCA HIGGINS TO HAWKESBURY CITY COUNCIL ("the Council") GIVEN 19th DAY MARCH 2015 IN RESPECT OF PREMISES AT 106 RIDGES LANE AND 1 POWELLS LANE, RICHMOND LOWLANDS Argosy Agricultural Group Pty Ltd, Sydney Polo Club Pty Ltd, and Peter and Rebecca Higgins undertake: 1. To cease the holding of wedding receptions or any other functions without the Council's consent at the premises at 106 Ridges lane and 1 Powells Lane Richmond "the premises" after 31st October 2015. 2. Prior to 31st October 2015 the only wedding receptions or other functions which may be held at the premises are those which were booked prior to 17 December 2014. 3. To ensure in respect of wedding receptions or other activities conducted on the premises prior to 31st October 2015, a. That those receptions or activities cease by 10.30 pm with the premises to be vacated by 11.00 pm b. Compliance at all times with any Noise Prevention Notice issued by the Council. 1. The Respondents accept that the operation of a function centre is prohibited in the zone RU2 Rural Landscape. They have applied for development consent to the Council for a temporary use as permitted under cl 2.8 of the Hawkesbury Local Environment Plan (the LEP) which provides for up to 28 days of activity in a year. The Council considered these development applications on 12 May 2015 and the matter is to be further considered on 30 June 2015. The Third Respondent gave an undertaking on 19 March 2015 to the Council that it will not take any further bookings for either of the two buildings used for wedding receptions or other functions, as extracted above in par 9. The list of functions booked until 31 October 2015 is annexure C to Mr Doyle's affidavit. 2. The Applicant says that the use as a function centre is prohibited under the LEP which is not disputed, causes amenity impacts particularly noise impacts and the enforcement of the planning laws is a matter of public interest so that expedition is warranted. A number of weddings are planned for the coming months and the precise numbers of other functions planned have not been made clear by the Respondents. That the Council has said it will determine the matter on 30 June 2015 is not certain. While Council staff have recommended approval of the current development applications for temporary use, the report in the Council's ordinary meeting of 12 May 2015 has identified a number of deficiencies and discrepancies in the information provided in support of the application. Even if consent is granted a number of studies are likely to be required in order for events at the venues to be conducted appropriately and are likely to take some time to comply with. 3. Relevant principles were summarised most recently by Pepper J in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116 at [10] and [11] as follows: 10 There is no specific power dealing with expedition in either the Civil Procedure Act 2005 ("CPA"), the Uniform Civil Procedure Rules 2005 ("UCPR") (other than in the Court of Appeal: see r 51.60 of the UCPR), the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007. It therefore appears that the power of this Court to grant expedition is found in s 61 of the CPA and r 2.1 of the UCPR. The former provision enables the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, and the latter rule enables the Court, at any time, to give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. Both compliment the provisions contained in ss 56 to 58 and ss 61 to 63 of the CPA. 11 In Vaughan v Dawson [2005] NSWSC 33, Campbell J quoted (at [8]) the following passage from Greetings Oxford Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 (at 42-43 per Young J) articulating some of the applicable principles in determining whether or not to exercise the Court's discretion to grant expedition: 8 In Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43 Young J said: "...when considering whether to expedite proceedings in this Division there are at least six factors which are taken into account. These are: (1) Is this the appropriate Court for the litigation, in particular: (a) does the litigation fall into the work normally done by this Court; and (b) is there a sufficient nexus with New South Wales. (2) Is there a special factor involved which warrants expedition. Usually these factors will be: (a) the loss of witnesses if the case is not fixed at an early date; (b) matters of public importance; (c) that the subject matter of the litigation will be lost if it is not heard quickly; (d) that the litigation to date has been delayed through no fault of the applicant; (e) that the applicant is suffering hardship not caused through his own fault; (f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date); (g) the nature of the case (for example, ejectment, child custody); and (h) that there are large sums of money involved. There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings. (3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed? (4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted… 1. I largely agree with the Respondents' submission that the Applicant has not established a case for granting expedition. It is a valid observation to note that the Applicant has not sought an interlocutory injunction despite its concerns about the amenity impacts of what is acknowledged to be an unlawful activity. That would appear to be a more appropriate response than seeking to expedite the hearing. The Respondents' counsel advised that the function centre has been operating for four years and the Applicant has been aware of the functions since March 2014. The function centre activity at the two relevant buildings is being carried out in accordance with the undertaking given to the Council in March this year. The list of functions provided in the evidence can be further varied by removing two dates due to cancellation and adding one date in July 2015. The number of events from now until the end of October 2015 is six weddings at one location, the most distant from the Applicant's property, and nine weddings at the other location closer to the Applicant's property. No additional functions have been booked by the Third Respondent since it gave its first undertaking to the Council on 17 December 2015. The undertaking given to the Council limits the night time hours. 2. The Council staff recommended approval of the Respondents' development applications and this is awaiting further consideration by the Council. 3. In the circumstances it is preferable to await the Council's consideration of the development applications on 30 June 2015 as that may well negate the need for these proceedings. It is not appropriate that I speculate on how likely the development applications are to receive consent from the Council. I agree that as identified in Gandangara I am considering this expedition application under s 61 of the Civil Procedure Act 2005 (NSW), providing for the speedy resolution of issues and r 2.1 of the Uniform Civil Procedure Rules 2005 (NSW), providing for orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. That is the primary consideration in this matter. The matters referred to in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at [11] of Gandangara do not provide much assistance here. Clearly (1) is not in dispute. In relation to (2), while the matter of enforcement of the planning law in the Environmental Planning and Assessment Act 1979 (NSW) is a matter of public importance that would be considered in any final determination in any event in the exercise of the Court's discretion. 4. I do not consider the Applicant, essentially through its manager who lives on the property belonging to the Applicant, supported by the evidence of Mr Gestel, is suffering sufficient hardship to warrant an order for expedition. The just quick and cheap resolution of the matter suggests that the outcome of the Council meeting on 30 June 2015 should be known before any hearing date. None of the other factors in (3) and (4) of Greetings Oxford Koala Hotel Pty Ltd such as the Applicant being willing to proceed quickly are particularly relevant. The Respondents state they have substantial material including expert evidence they wish to place before the Court in relation to the question of discretion and they should have that opportunity. Orders 1. The Court makes the following orders: 1. The Applicant's Notice of Motion dated 22 April 2015 is dismissed. 2. Costs reserved. ********** 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: 03 June 2015