Nara Lounge Pty Limited v Hurstville City Council [2015] NSWLEC 1560

Land and Environment Court New South Wales

Medium Neutral Citation: Nara Lounge Pty Limited v Hurstville City Council [2015] NSWLEC 1560 Hearing dates: 20 March 2015 Date of orders: 20 March 2015 Decision date: 20 March 2015 Jurisdiction: Class 1 Before: Registrar Gray Decision: Subpoena set aside, costs of the motion as agreed or assessed Catchwords: SUBPOENA – application to set aside subpoena to attend – subpoena to assessing officer – evidence of assessing officer not relevant to merit appeal Legislation Cited: Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 Land and Environment Court Rules 2007 Category: Procedural and other rulings Parties: Nara Lounge Pty Limited (Applicant) Hurstville City Council (Respondent) Representation: Counsel:

Solicitors: Emprise Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 10916 of 2014 Publication restriction: No

judgment ON NOTICE OF MOTION 1. REGISTRAR: These proceedings concern an appeal by the applicant against the respondent's refusal to modify the development consent granted by the respondent in June 2014 for the use of premises as a restaurant and food kiosk. The modification application seeks to increase the number of seats from 60 to 250, together with a consequential increase to the waste facilities room. 2. The hearing of these proceedings is listed for Monday 23 and Tuesday 24 March, with today being the last business day before that hearing. 3. In preparing for the hearing, the applicant requested the issue of a subpoena to Ms Paula Bizimis (incorrectly referred to in the subpoena as Ms Pauline Bizimis), Hurstville Council Senior Development Officer. That subpoena requires the attendance of Ms Bizimis to give evidence at the hearing and was issued on 9 March. The present application, made by the respondent by Notice of Motion filed on 16 March 2015, seeks to set aside that subpoena. 4. By way of background, Ms Bizimis was the council officer who prepared the report in relation to the assessment of the modification application. That assessment report was provided to the Ordinary Council Meeting. Notwithstanding that her report recommended approval of the modification, the Council determined to refuse the application. These proceedings were then commenced and the Council engaged two experts to provide evidence in relation to traffic and planning issues. The Statement of Facts and Contentions filed in the proceedings on 19 December 2014 assert that there is insufficient information for an assessment of the modification application. 5. Particulars are provided of that contention and those particulars outline the precise matters that the Council says ought to be addressed in order for the Court to conduct its assessment of the modification application. Other contentions raised in these proceedings relate to whether the development, as modified by the modification application, is substantially the same as the original development consent, as well as issues in relation to the public interest of the modification application, and the adequacy of parking. Joint reports have been filed in relation to both town planning and parking.