Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 5) [2016] NSWLEC 134

Land and Environment Court New South Wales

Medium Neutral Citation: Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 5) [2016] NSWLEC 134 Hearing dates: 11 October 2016 Date of orders: 12 October 2016 Decision date: 12 October 2016 Jurisdiction: Class 4 Before: Sheahan J Decision: The Respondent's Notice of Motion of 29 September 2016 is dismissed Catchwords: PRACTICE AND PROCEDURE: application for a further extension of a stay on orders made by the Court – discretion – refused – costs. Legislation Cited: Protection of the Environment Operations Act 1997 Cases Cited: Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 2) [2015] NSWLEC 114 Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 3) [2015] NSWLEC 118 Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 4) [2016] NSWLEC 90 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Lake Macquarie City Council (Applicant) Australian Native Landscapes Pty Limited (Respondent) Representation: Counsel: Mr T To, barrister (Applicant) Dr S Berveling, barrister (Respondent)

Solicitors: Moray & Agnew Newcastle (Applicant) McCabes Lawyers (Respondent) File Number(s): 2016/213622

Judgment

Introduction 1. These Class 4 proceedings concern a site in Crawford Road, Cooranbong. 2. The respondent, Australian Native Landscapes Pty Limited ("ANL"), has asked the Court to further extend the stay on some orders made by Biscoe J following his judgment of 17 July 2015: Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 2) [2015] NSWLEC 114. 3. His Honour's decision followed a hotly contested hearing over 13 hearing days, but, when he settled his orders on 23 July 2016, he stayed some to 31 July 2016 (see Order 8 in Annexure 'A' to the Vergotis affidavit of 29 September 2016, at p8). 4. His Honour's key findings, and his relevant orders, are summarised in the judgment I delivered on 21 July 2016, extending that stay until 14 October 2016, rather than the then requested 31 December 2016: Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 4) [2016] NSWLEC 90, at [4] – [17]. 5. Council, for whom Mr To appears, made a strong case on that occasion for that extension to be refused. I said (at [38] – [42]): 38 The arguments in favour of extending the stay are not strong, particularly when viewed against several elements of the chronology I have described – e.g., the missing of the 1 December 2015 deadline; the tardiness in preparing and lodging the necessary DA, and now apparently in providing the additional information Council has sought; making the water use accounting available to Council only on 18 March 2016; the delay in seeking the extension of the stay; and the failure to follow up local concerns discussed on 18 March. 39 Mr To has argued that an extension of the stay may not really be needed, and he has certainly argued strongly that it is not justified, and should be refused. He points out, inter alia, that ANL has produced no evidence of any attempt to comply with Order 7 regarding the diversion of leachate from a key part of the site. The Court was reluctant to grant the extension. 40 On the other hand, there has been some progress, and the Court should not be too precipitous in making a decision that may well force the closure of ANL's operation, especially when the parties and the Court are soon to examine in the Class 1 appeal many merits issues regarding it. 41 The Council being supportive of the operation, if regularised, the Class 1 appeal should be resolved within twelve weeks. Conclusion and Orders 42 I am, therefore, prepared to extend the stay for a short period – until only 14 October 2016. 1. The related Class 1 proceedings to which I referred (in [40]) are now fixed for hearing for seven days, commencing 3 April 2017.