Land and Environment Court New South Wales Medium Neutral Citation: Evolution Planning Pty Limited v Northern Beaches Council [2017] NSWLEC 23 Hearing dates: 2 March 2017 Date of orders: 02 March 2017 Decision date: 02 March 2017 Jurisdiction: Class 1 Before: Pain J Decision: The Court orders that the Notice of Motion filed by the Applicant dated 2 March 2017 be dismissed. Catchwords: PRACTICE AND PROCEDURE- Applicant's Notice of Motion for expedition refused Legislation Cited: Pittwater Local Environmental Plan 2014 Cases Cited: Warriewood Vale Pty Ltd v Northern Beaches Council (No 2) [2017] NSWLEC 21 Category: Procedural and other rulings Parties: Evolution Planning Pty Limited (Applicant) Northern Beaches Council (Respondent) Warriewood Vale Pty Ltd (Intervenor on Notice of Motion) Representation: COUNSEL: B Tibbey (Applicant) A Stafford (Respondent) M Staunton and J Reid (Intervenor) SOLICITORS: L C Muriniti & Associates (Applicant) King and Wood Mallesons (Respondent) Pikes & Verekers (Intervenor) File Number(s): 2017/40390 EX TEMPORE Judgment 1. The Applicant has filed a Notice of Motion dated 2 March 2017 seeking expedition of this Class 1 appeal concerning its development application relating to premises at 4 Forest Road Warriewood. This Class 1 appeal was filed on 8 February 2017 following the deemed refusal of a development application lodged with the Northern Beaches Council on 16 November 2016. Class 1 appeal matter no 16/151186 Warriewood Vale Pty Ltd v Northern Beaches Council concerns the adjoining land at 8 Forest Road Warriewood. The Class 1 appeal in that matter was heard by a Commissioner between 28 February and 1 March 2017. Judgment is reserved. Because of the operation of the Pittwater Local Environmental Plan 2014 (LEP) both properties are part of one sector which has an overall limit on the number of lots that can be developed. Warriewood Vale Pty Ltd was granted leave to speak on the motion as an intervenor. 2. The Applicant submits that the Court needs to be properly informed of its Class 1 appeal in order to also properly consider matter no 16/151186. There is a risk that the Court will act inconsistently with the LEP if it determines the Class 1 appeal in matter no 16/151186 without considering this matter. The Council does not oppose or support the application for expedition. Finding 1. For the reasons advanced by the Intervenor this motion should be refused. The Applicant has not acted expeditiously in pursuing its development application, which was only lodged with the Council in November 2016. It received advice in March 2016 that it should do so. The two matters have different application histories which has meant that one Class 1 appeal commenced much earlier in the Court (February 2016) than the Applicant's appeal. 2. In the hearing of matter no 16/151186 the only contention outstanding was the application of the density provisions for the relevant sector and the capability of the two lots (4 and 8 Forest Road) under the Pittwater LEP. The Applicant presented planning evidence from its town planner on that contention at the hearing. The Applicant's development application was before the Court so the Commissioner is fully aware of that matter. 3. The underlying rationale for the motion is to seek to have this matter heard and determined before matter no 16/151186. It is not appropriate to expedite this matter to attempt to "leapfrog" over matter no 16/151186. 4. I additionally observe there is no cogent reason why the orderly determination of matters before the Court should not proceed in the usual way. It is not the Court's role to pick "winners" in the planning context of the LEP. I have already rejected the application by the owners of 4 Forest Road Warriewood as intervenors in matter no 16/151186 to have the imminent hearing dates of that matter vacated with a view to having the two Class 1 appeals heard together (Warriewood Vale Pty Ltd v Northern Beaches Council (No 2) [2017] NSWLEC 21). This application is an attempt to achieve a similar outcome. It should be refused. Order 1. The Court orders that the Notice of Motion filed by the Applicant dated 2 March 2017 be dismissed. ********** 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: 07 March 2017