Land and Environment Court New South Wales Medium Neutral Citation: Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel (No 2) [2017] NSWLEC 55 Hearing dates: 05 May 2017 Date of orders: 05 May 2017 Decision date: 05 May 2017 Jurisdiction: Class 1 Before: Robson J Decision: Application refused Catchwords: PRACTICE AND PROCEDURE – application to vacate hearing dates – whether vacation warranted to allow articulation of revised issues – application refused Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Environment and Planning Assessment Act 1979 (NSW), Pt 5 State Environment Planning Policy No 14 – Coastal Wetlands Category: Procedural and other rulings Parties: Butler Street Community Network Incorporated (Applicant) Northern Region Joint Regional Planning Panel (First Respondent) GHD Pty Ltd (Second Respondent) Byron Shire Council (Third Respondent) Representation: Counsel: N Hammond (Applicant) J Wood, solicitor (First Respondent) A Galasso SC (Third Respondent) Solicitors: McCartney Young Lawyers (Applicant) Department of Planning and Environment (First Respondent) HWL Ebsworth Lawyers (Second Respondent and Third Respondent) File Number(s): 2016/00227775 Judgment 1. These are reasons for orders given in the afternoon of 5 May 2015. Earlier that day I gave judgment refusing to make an order dismissing these Class 1 appeal proceedings. My judgment dealt with the first order sought in the Notice of Motion filed by Butler Street Community Network Incorporated ('Butler Street') that was argued before me as Duty Judge on 28 April 2017. The Notice of Motion sought orders more particularly: 1. That the proceedings be dismissed as the Court has no jurisdiction to determine the development application that is before it. 2. That the dates for the hearing of these proceedings, being 15, 16 and 17 May 2017 be vacated. 3. That the Orders for "Case management" and the timetable made by Court on 30 March 2017 be vacated and no further orders for Case management be made until the determination of the issues raised in proposed Order 1 of this Motion. … 1. I concluded for reasons published on 5 May 2017 (Butler Street Community Network Inc v Northern Region Joint Regional Panel [2017] NSWLEC 51) ('earlier judgment') that the Court, in the circumstances therein set out, did have jurisdiction to determine the development before it and therefore dismissed Order 1. I deferred consideration on the other orders including Orders 2 and 3 in the Motion seeking vacation of hearing dates on 15, 16 and 17 May 2017 to allow further submissions which I heard on the afternoon of 5 May (after handing earlier judgment). 2. I declined to make an order vacating the hearing dates and given the urgency of the matter, indicated that I would later publish my reasons. I also gave the following directions: 1. The applicant is to file and serve any amended Statement of Facts and Contentions by 8 May 2017. The amendments to the contentions are to be restricted to the deletion of existing contentions and/or particulars. No new contentions may be raised absent leave of the Court. 2. The experts are to file and serve their joint reports by 11 May 2017. 3. The JRPP is to file and serve its draft conditions in response by 10 May 2017. 4. The applicant is to file and serve its draft conditions in response by 12 May 2017. 5. The parties are to exchange indexes to proposed bundles of documents by 9 May 2017. 6. The parties are to file an agreed bundle of documents or, if no agreement is reached, separate bundles of documents, by 10 May 2017. 7. The applicant is to file and serve a notice of objectors who wish to give evidence at the hearing by 9 May 2017. 1. This judgment sets out my reasons for declining to vacate the hearing dates. 2. I adopt the background facts summarised at [5]-[11] of the earlier judgment. Butler Street's submissions 1. During the submissions on 5 May in regards to vacation, Ms Hammond, of counsel, who appeared for Butler Street, submitted in summary that the following matters warranted the Court vacating the hearing dates: 1. In light of the Court's decision that the Court does have jurisdiction to determine the application, Butler Street is now left with two options, either to: 1. discontinue the proceedings; or 2. amend the Statement of Facts and Contentions so as to reflect what may be a significant narrowing of issues. 1. Once the "jurisdictional issue" had been raised, Butler Street was in a position of uncertainty regarding first whether the Court was able to determine the appeal at all, and second, if the Court was so able, what the scope of the revised development application would be. The letter of 28 March 2017 from Byron Shire Council's ('Council') solicitors simply raised the jurisdictional issue, but did not articulate how Council, in light of the jurisdictional issue, proposed to frame the development application. While it indicated to Council that, on its reading of the State Environment Planning Policy No 14 – Coastal Wetlands ('SEPP 14'), consent was required only for "associated works" for that part of the development that is proposed to pass through the wetlands governed by SEPP 14 ('SEPP 14 Wetlands'), it was not until the interlocutory hearing on 28 April 2017 that Council made it clear that it would be seeking consent for the road on the SEPP 14 Wetlands, rather than the "associated works". Although the draft conditions of consent provided by Council now make clear the revised scope of the application, they were only received from Council's solicitors on 4 May 2017. 2. Butler Street is unable to proceed to the hearing based on its current preparation as the fact that consent is only required for part of the development has significantly changed the matters that require determination, and therefore affect the way it has put its case thus far. Its case had previously focused on issues relating to the impact on the residents of Butler Street – for example noise, traffic etc., however the issues relating to the impact of the development on the SEPP 14 Wetlands are significantly different, and further time is required to allow it to articulate the revised issues. 3. Further in relation to preparedness, after receiving the letter from Council's solicitors on 28 March 2017, Butler Street instructed its experts to refrain from preparing reports, as both the validity and scope of the proceedings were now in issue. While Council's expert evidence was received on 31 March 2017 (with the final ecology report being received on 4 April 2017), Butler Street only instructed its experts to start reviewing those reports in the week commencing 24 April 2017, and this, combined with the fact that it has not yet put on any expert evidence of its own, would cause significant prejudice if the hearing was to proceed on 15 May 2017. 4. Accepting that vacating the hearing would cause delay, this would not prejudice Council, as the draft conditions of consent make clear that Council is now required to seek approval under Part 5 of the Environment and Planning Assessment Act 1979 (NSW) ('EPA Act') ('Part 5 approval'), which itself will cause delay. Council's submissions 1. Mr Galasso SC, who appeared for Council, opposed the vacation of the hearing dates on the basis that to do so would cause it prejudice in circumstances where the vacation is not warranted, and submitted: 1. In relation to the scope of the consent required, it was Butler Street who suggested that application was only required for "associated works". The application remained substantially the same regardless of the fact that consent was only required for a specific part of the development, and if Butler Street misunderstood this issue, this was of its own making. The draft conditions of consent were provided within the time directed by the Court and clarified the scope of consent required. 2. In relation to timing, while there was a delay in its provision of expert evidence, at this point the only direction currently outstanding is for Butler Street to provide its expert reports and, further in any event, there is a question as to whether Butler Street is "required" to do so. Butler Street's instructions to its experts to refrain from reviewing Council's reports and preparing their own reports was at its election, and cannot now be relied upon to support a vacation of the hearing dates. 3. Vacation of the hearing dates would cause Council prejudice in circumstances where a date has been fixed for hearing since December 2016. Further the development in question is a public, not private, development. 4. Further, if the hearing dates are vacated, Council will be required to engage a new heritage expert as their current expert, Mr Staas, is retiring shortly. 5. Butler Street's submission that Council is required to gain Part 5 approval was wrong – Part 5 of the EPA Act requires the consent authority to consider certain matters as opposed to "providing approval" – and in that sense there is no substance in the submission that this will delay the approval of the proposed development. Consideration 1. Having considered the submissions, and having been familiar with the background facts (as a result of the earlier judgment) my reasons for declining to order a vacation of the hearing dates can be briefly stated. 2. While I accept that Butler Street has significant concerns arising from the contraction in the scope of consent required for the development, I do not consider that this contraction necessarily changes the issues in the proceedings in a substantial way. I accept that Butler Street has framed its case in a particular way, i.e. to focus on the impacts of the development on the residents of Butler Street. However, it was open for Butler Street to raise concerns regarding other aspects of the development at the time when it filed its Statement of Facts and Contentions, including concerns in relation to the SEPP 14 Wetlands. Importantly, as canvassed in the earlier judgment, the scope of that part of the proposed development has not changed over the course of these proceedings. The fact that Butler Street did not raise particular issues that may have been open to it and available cannot be relied upon to support a vacation of the hearing dates. 3. In relation to the preparation of expert evidence, I accept that Butler Street is less prepared than it otherwise would have been because it instructed its experts to refrain from preparing their evidence pending the resolution of the issue regarding the Court's jurisdiction. This instruction, while understandable, was however a forensic decision on the part of Butler Street as to how it considered to best run its case. 4. In circumstances where the parties have been allocated a hearing date since December 2016, I do not consider it to be in the interests of a "just, quick and cheap" resolution of the real issues in the proceedings (as per s 56 of the Civil Procedure Act 2005 (NSW)) to vacate the hearing dates at this late stage. The parties and the Court have all allocated significant time and resources in preparation for the hearing, and it is unlikely that, if the matter is vacated, the parties will be able to secure a hearing date in the near future given the Court's scheduling. The case management directions for these proceedings have, for the most part, been fully complied with, and to the extent required, a shortened timetable can be accommodated. Conclusion 1. I accept that Butler Street, through no fault of its own, now has significant concerns regarding its prospects for success in the proceedings, as well as the overall merits of pursuing the proceedings. Due to a misunderstanding of the relevant planning legislation, which was shared by all parties, the issues that Butler Street chose to focus on may now be largely irrelevant for the purposes of the proceedings. However, Butler Street made a calculated, strategic decision to run and prepare its case in a particular way. Recognising the prejudice that would be caused to Council and the likely significant delay that would result from vacation, in the circumstances I do not consider a vacation of the hearing dates to be warranted. Orders 1. The orders made on 5 May 2017 were: 1. The applicant is to file and serve any amended Statement of Facts and Contentions by 8 May 2017. The amendments to the contentions are to be restricted to the deletion of existing contentions and/or particulars. No new contentions may be raised absent leave of the Court. 2. The experts are to file and serve their joint reports by 11 May 2017. 3. The JRPP is to file and serve its draft conditions in response by 10 May 2017. 4. The applicant is to file and serve its draft conditions in response by 12 May 2017. 5. The parties are to exchange indexes to proposed bundles of documents by 9 May 2017. 6. The parties are to file an agreed bundle of documents or, if no agreement is reached, separate bundles of documents, by 10 May 2017. 7. The applicant is to file and serve a notice of objectors who wish to give evidence at the hearing by 9 May 2017. ********** 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: 11 May 2017