Land and Environment Court New South Wales Medium Neutral Citation: TC (Tallwoods) Pty Ltd v Liverpool City Council [2018] NSWLEC 48 Hearing dates: 11 April 2018 Date of orders: 12 April 2018 Decision date: 12 April 2018 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [55]. Catchwords: PROCEDURE – application for expedition – failure of Council to accept development application potentially in breach of statutory duty – relevance of Applicant being prevented from exercising put and call options – relevance of consequential financial hardship – expedition granted Legislation Cited: Environmental Planning and Assessment Act 1979 s 8.11 Environmental Planning and Assessment Regulation 2000 cll 50, 51; Div 11 of Pt 6 Uniform Civil Procedure Act 2005 s 61 Uniform Civil Procedure Rules 2005 r 2.1 Cases Cited: Crighton Properties Pty Limited v Kiama Municipal Council [2006] NSWLEC 297 Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 Marshall Rural Pty Ltd v Basscave Pty Ltd [2017] NSWLEC 84 Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6 Category: Procedural and other rulings Parties: TC (Tallwoods) Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: Mr Michael Staunton (Applicant) Ms Keli Law – solicitor (Respondent) Solicitors: Hall & Wilcox Lawyers (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2018/77195 Judgment Background 1. This is a motion for expedition of the hearing of an application for judicial review of a decision of Liverpool City Council (Respondent Council) not to accept a purported development application (Application) made by TC (Tallwoods) Pty Limited (Applicant). 2. The Application sought consent to the subdivision of land and construction of 51 dwellings pursuant to the State Environmental Planning Policy (Sydney Growth Centres) 2006 at 225 and 235 Eighth Avenue, Austral (Land). The Land is an unregistered lot in a proposed subdivision which is currently the subject of assessment by the Respondent Council pursuant to DA-72/2018. 3. At dispute is whether the Application was, in fact, a development application made in accordance with the Environmental Planning and Assessment Act 1979 (EPA Act) and Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 4. Factual matters relevant to the determination of the application for expedition are set out below. 5. On 20 December 2017, the Applicant purportedly lodged the Application with the Respondent Council. 6. By way of letter dated 20 December 2017 (but which the Applicant says it did not receive until 8 January 2018), headed "Not Lodged - Development Application – Subject – 225 and 225A [presumably intending to refer to 235] Eighth Avenue Austral – Subdivision of Land and Construction of 51 Dwellings", the Respondent Council informed the Applicant that it was "returning the application because it is incomplete and Council cannot carry out a full and proper assessment of incomplete applications". 7. The Respondent Council did not accept the Application, instead returning it to the Applicant. The Application was not assigned a DA number which would otherwise have confirmed its formal lodgement. The letter then set out additional information the Respondent Council "require[d] to assess [the] application", being amended elevation and cross section plans, an additional site plan, and an expanded statement of environmental effects. It concluded by noting that "[t]his letter does not infer any merit assessment of your application other than some apparent observations that may affect the outcome of your application." The Respondent Council's letter did not purport to be a formal request for further information pursuant to cl 54 of the EPA Regulation. 8. On 25 January 2018 the Applicant lodged an amended Application, which sought to address the matters set out in the Respondent Council's 20 December 2017 letter. 9. On 7 February 2018 the Respondent Council once more wrote to the Applicant, under the heading "Not Lodged - Development Application – Subject – 225 and 225A [as above, presumably intending to refer to 235] Eighth Avenue Austral – Subdivision of Land and Construction of 51 Dwellings", informing the Applicant that the Respondent Council "has rejected the application". It is to be noted that the operative word was "rejected" rather than "refused". The reasons provided for this included that there was an extant development application –DA-72/2018– on the Land which remained undetermined by the Respondent Council, that "in effect, the Application is completely dependent on the grant of consent for development in application DA-72/2018", and that the final details of the Application are therefore uncertain and unclear. 10. On 27 February 2018, the Applicant's solicitor sent a letter to the Respondent Council inviting it to issue a receipt for the Application lodged on 20 December 2017 or that lodged on 25 January 2018. 11. In the course of the hearing before me, counsel for the Applicant informed the Court that the Applicant for DA-72/2018 was in fact the Applicant's project director, confirming that the two applications were associated. 12. On 6 March 2018 the Respondent Council, in a response to an email from the Applicant's solicitor foreshadowing the Class 4 application, stated that "the issues pressed in the letter of 20 December 2017 were addressed", but that at that time "we were no[t] aware that the application involved the subdivision of another undetermined application", and that the Respondent Council's "letter of 7 February 2018 is pressed because the application is uncertain and unclear and, unless and until DA-72/2018 is approved, council cannot determine the rejected application". The Class 4 application 1. The Applicant therefore, on 9 March 2018, filed with the Court a Class 4 summons (the Summons) seeking the following relief: 1 A declaration that the decision by the Respondent on 20 December 2017 to reject the Development Application provided by the Applicant and received by the Respondent on 20 December 2017 is void and of no effect. 2. A declaration that the Development Application lodged with the Respondent on 20 December 2017 was validly made within the meaning of the Environmental Planning and Assessment Act 1979. 3. In the alternative, a declaration that the decision by the Respondent on 7 February 2018 to reject the Development Application provided by the Applicant and received by the Respondent on 25 January 2018 is void and of no effect. 4. If the declaration sought at 1 and 2 above are not made, then a declaration that the Development Application lodged with the Respondent on 25 January 2018 was validly made within the meaning of the Environmental Planning and Assessment Act 1979. 5. Such further or other Orders as this Court deems appropriate. 6. Costs. Notice of Motion seeking expedition 1. This decision is, however, concerned with the Notice of Motion filed with the Court on 22 March 2018 (the Motion) seeking expedition of the Class 4 proceedings in the following terms: 1. That the proceedings be granted expedition; 2. That the proceedings be fixed for hearing at the first available date convenient to the Court; 3. The Respondent pay the Applicant's costs of the motion; and 4. Such further or other Orders which the Court deems necessary. 1. The Motion was supported by an affidavit of Mr Stan Kondilios, sworn and filed 22 March 2018. Mr Kondilios is the solicitor on the record for the Applicant and confirmed that he was responsible for and has the carriage of the proceedings for the Applicant. 2. At the hearing, the Respondent Council indicated that it would not oppose an order for expedition, provided the expedited hearing of the Summons could occur within a month and provided the Respondent Council is given adequate time to defend the case. No evidence, such as an answering affidavit, was filed on behalf of the Respondent Council. 3. I indicated to the parties that irrespective of whether the Respondent Council consents to an order for expedition, the Court itself must be satisfied that it is appropriate to grant expedition. Accordingly, even if the Respondent Council did not wish to make submissions in opposition to those of the Applicant, the onus still rests with the Applicant to satisfy the Court that, nevertheless, expedition should be granted. As an order for expedition has the potential to disrupt the extant scheduling of cases within the Court, including the reallocation of cases amongst the judges and potentially increasing their workload, it remains necessary for the Court to exercise its discretion in the context of whether or not, in the all circumstances, it is reasonable and proper for expedition to be ordered, having regard to the resources of the Court. 4. If the Applicant was successful on its Motion seeking expedition, the subject of the interlocutory hearing before me, and was subsequently successful in obtaining the declarations and orders it seeks pursuant to its summons, then a Class 1 Application would follow. Relevant statutory and regulatory provisions 1. At this point, it is convenient to set out by way of context the statutory and regulatory provisions relevant to my consideration. 2. With respect to the Court's ability to grant the expedition sought by the Applicant, s 61 of the Civil Procedure Act 2005 provides for the Court's power to, "by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings". 3. The Uniform Civil Procedure Rules 2005 similarly provides: 2.1 Directions and orders The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. 1. The EPA Regulation at cl 50 states: 50 How must a development application be made? (1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and (b) if the consent authority so requires, must be in the form approved by that authority, and (c) must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and (d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission. (1A) If a development application that relates to residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, the application must be accompanied by a statement by a qualified designer. (1AB) The statement by the qualified designer must: (a) verify that he or she designed, or directed the design, of the development, and (b) provide an explanation that verifies how the development: (i) addresses how the design quality principles are achieved, and (ii) demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved. (1B) If a development application referred to in subclause (1A) is also accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in that subclause need not be verified to the extent to which they aim: (a) to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or (b) to improve the thermal performance of the building. (2) A development application that relates to development for which consent under the Wilderness Act 1987 is required must be accompanied by a copy of that consent. (2A) A development application that relates to development in respect of which a site compatibility certificate is required by a State Environmental Planning Policy must be accompanied by such a certificate. (2B) (Repealed) (3) Immediately after it receives a development application, the consent authority: (a) must register the application with a distinctive number, and (b) must endorse the application with its registered number and the date of its receipt, and (c) must give written notice to the applicant of its receipt of the application, of the registered number of the application and of the date on which the application was received. (4) In the case of a development application under section 4.12 (3) of the Act, the application must be accompanied by such matters as would be required under section 81 of the Local Government Act 1993 if approval were sought under that Act. (5) The consent authority must forward a copy of the development application to the relevant council if the council is not the consent authority. (6) If the development application is for designated development, the consent authority must forward to the Secretary (where the Minister or the Secretary is not the consent authority) and to the council (where the council is not the consent authority) a copy of the environmental impact statement, together with a copy of the relevant application. Note. Additional requirements in relation to the making of a development application apply to applications for designated development, for integrated development and applications for development that affect threatened species. (7) In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the consent authority must make its determination by reference to a genuine estimate of the construction costs of the work the subject of the development application, including any part of the work that is BASIX excluded development. The estimate must, unless the consent authority is satisfied that the estimated cost indicated in the development application is neither genuine nor accurate, be the estimate so indicated. 1. Clause 51 of the EPA Regulation provides: 51 Rejection of development applications (1) A consent authority may reject a development application within 14 days after receiving it if: (a) the application is illegible or unclear as to the development consent sought, or (b) the application does not contain any information, or is not accompanied by any document, specified in Part 1 of Schedule 1, or (c) being an application referred to in section 78A (8A) of the Act, the application is not accompanied by an environmental impact statement referred to in that subsection. Note. Schedule 2 sets out requirements in relation to environmental impact statements. (2) A consent authority may reject a development application within 14 days after receiving it if: (a1) being an application for development requiring concurrence, the application fails to include the concurrence fees appropriate for each concurrence relevant to the development, or (a) being an application for integrated development, the application fails: (i) to identify all of the approvals referred to in section 4.46 of the Act that are required to be obtained before the development may be carried out, or (ii) to include the approval fees appropriate for each approval relevant to the development, or (iii) to include the additional information required by this Regulation in relation to the development, or (b) being an application that is required under Part 7 of the Biodiversity Conservation Act 2016 to be accompanied by a biodiversity development assessment report, the application is not accompanied by such a report, or (c) being an application that is required under 221ZW of the Fisheries Management Act 1994 to be accompanied by a species impact statement, the application is not accompanied by such a statement. (3) An application is taken for the purposes of the Act never to have been made if the application is rejected under this clause and the determination to reject the application is not changed following any review. (4) The consent authority must refund to the applicant the whole of any application fee paid in connection with an application that is rejected under this clause and must notify the applicant in writing of the reasons for the rejection of the application. (5) Immediately after the rejection of a development application for: (a) development for which the concurrence of a concurrence authority is required, or (b) integrated development, the consent authority must notify each relevant concurrence authority or approval body of the rejection. Relevant chronology 1. It is helpful to understand the timeline in this matter. The most relevant dates are as follows. Date Event 20 December 2017 Applicant purportedly lodges Application with Respondent Council 8 January 2018 Applicant receives letter notifying that the Application rejected on 20 December 2017 25 January 2018 Applicant purportedly re-lodges development application with Respondent Council, addressing those matters raised by the Respondent Council to the Applicant in its letter dated 20 December 2017 7 February 2017 Respondent Council "rejects DA again" 9 March 2018 Summons and affidavit of Mr Stan Kondilios dated 22 March 2018 filed 22 March 2018 Motion seeking expedition filed by the Applicant 28 March 2018 Motion returned before Registrar and listed for hearing with directions 11 April 2018 Motion for expedition heard 18 July 2018 Expiry of option to purchase 235 Eighth Avenue 22 August 2018 Expiry of option to purchase 225 Eighth Avenue The law relevant to an application for expedition 1. My decision in Marshall Rural Pty Ltd v Basscave Ltd [2017] NSWLEC 84 set out the relevant principles of law with respect to an application for expedition. Referring to earlier authorities, paragraphs [19] - [20] are instructive: 19. With respect to identifying the power of this Court to order the expedition of proceedings, I adopt the analysis of Pepper J in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116 at [10], which was cited with approval by Pain J in Marshall Rural Pty Ltd v Basscave Ltd [2015] NSWLEC 86 at [12]: 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. 20. As was observed by Pain J in Marshall Rural Pty Ltd v Basscave Ltd at [12] (again quoting Pepper J in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council), the applicable principles in determining whether or not to exercise the Court's discretion to grant expedition were set out by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43. The principles stated by Young J (insofar as they are relevant to this case) are: (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 … The Applicant's submissions 1. The grounds on which the Applicant seeks expedition are as follows: 1. the subject matter of the litigation will be lost if not heard quickly; 2. the litigation has been delayed through no fault of the Applicant; 3. the Applicant is suffering hardship not caused through its own fault; 4. there are large sums of money involved; 5. the purpose of the Applicant's contractual arrangements will be defeated; 6. the Applicant has proceeded up to the date of the hearing of the motion for expedition with due speed; and 7. based upon the evidence the matter is short and the Applicant is willing if expedition is granted to do all in its power to abridge the hearing time. 1. Clearly, in formulating its grounds, the Applicant focussed closely on the relevant factors warranting expedition as set out by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at [42] – [43]. The Applicant's counsel also relied upon my own decisions in Marshall Rural Pty Ltd v Basscave Ltd and Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6. 2. The Applicant, through the affidavit of Mr Kondilios, set out the contractual and financial circumstances of the Application. 3. In short, the Applicant has entered into put and call options for the purchase of the two lots comprising the Land from different vendors. The essential terms of each is as follows. 1. With respect to the option to purchase 225 Eighth Avenue: 1. Purchase price $4,300,000. 2. Option fees paid to date: $1,030,000. 3. Option expiry date: 22 August 2018. 4. Balance payable on completion: $3,270,000. 1. With respect to the option to purchase 235 Eighth Avenue: 1. Purchase price: $5,873,125. 2. Option fees paid to date: $1,293,636 plus $23,000 per month from 1 February 2018. 3. Option expiry date: 18 July 2018. 4. Balance payable on completion: $4,579,489. 1. In summary, the Applicant informed the Court that it has paid option fees of $2.3 million and is liable to pay a further $7.9 million to settle the Land. It has, in addition, paid numerous other (Council) fees in relation to the Application (despite it having been rejected). The fees paid to Council to date have not been insubstantial, amounting to $77,193.20. 2. The Applicant submitted that the purpose of the options was to enable it to seek and obtain consent prior to being obliged to complete the purchases. It further submitted that, in order to secure finance to complete the purchases, it needs to obtain development consent. 3. The Applicant noted that it has explored seeking finance without development consent, and has explored extending the options to complete the purchases, however that neither of these alternatives have proved to be available. 4. The Applicant contended that the legal consequence of the rejection of the Application (rather than, say, accepting the lodging of it as a development application and then refusing it) is that the Applicant cannot prosecute its development application either before the Council or the Court as time does not run on a deemed refusal under s 8.11 of the EPA Act and cl 113 of the EPA Regulation and until a development application has been made. In short, the usual statutory appeal options available to an applicant with a refused DA have been denied to this Applicant. Had the usual appeal pathway been triggered, the Application may have been before this Court months ago. 5. The Applicant argued that the rejection of the Application has therefore defeated the purpose of the Applicant's contractual arrangements and exposed the Applicant to significant financial hardship. This financial hardship arises as, if the Applicant does not obtain a development consent, it will not be able to raise finance to complete the purchase, thus exposing it to substantial financial losses (being the option fees of $2.3 million, and the $23,000 per month, plus expenses) and/or damages if the put option is exercised and the Applicant is not able to complete. 6. The Applicant argued that it is not at fault for this financial hardship. It contended that it allowed sufficient time to make a development application and to have that application determined by the Respondent Council, or the Court on appeal. It noted, as above, that it has investigated finance on the basis of no development consent, and extending the options, and has thus "done everything it could to avoid the hardship". 7. The Applicant argued that without the matter being heard expeditiously, the subject matter of the proceedings will be lost. That is, the options expire on 18 July 2018 and 22 August 2018. If the matter is not determined prior to these dates, the subject of the proceedings will be lost as the Applicant will not be able to obtain financing to acquire the Land. 8. Further, the Applicant noted that it has not delayed the litigation and has, to the contrary, acted expeditiously up until the time of the hearing of the motion. 9. Based on the evidence, the Applicant submitted that the hearing of the matter sought to be expedited (that is, the Class 4 proceedings commenced with the Summons) is of limited compass, whether the Application was unclear as to the consent sought, and would take 1 day to be heard by the Court. Consideration 1. I have found it convenient to set out my conclusions, following Young J's relevant factors, seriatim, as set out in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd. Loss of witnesses if the case is not fixed at an early date 1. The impact on potential witnesses was not raised by the Applicant, nor does the Court envisage that the hearing of the case on the Summons would give cause for any evidence to be called, other than that which might be addressed by the solicitors for either party. In any event, such evidence would be by affidavit and should neither necessitate oral supplementation nor cross-examination. Matters of public importance 1. No reference was made to any aspect of the case giving rise to matters of public importance. The subject matter of the litigation will be lost if it is not heard quickly 1. From the Applicant's perspective, potential loss of the subject matter of the litigation is a factor of critical importance. The Court accepts that there is a justifiable basis to acknowledge the Applicant's concern that time is truly "of the essence" in this case where by reason of an alleged potential misapplication or misinterpretation of the law by the Respondent Council, the Applicant may be shut out from securing consent for a development, or, at the least, having the merits of the Application properly considered. The Respondent Council's approach of informally rejecting, rather than refusing, the Application meant that the merits (or otherwise) of the Application have not yet been considered. If the Applicant's case - that the Application was improperly rejected - is not heard expeditiously, then it is highly likely that by mere effluxion of time the opportunity to have the merits (or otherwise) of its proposal considered will be denied to it. 2. The Court accepted that by reason of the contractual arrangements pertaining to the acquisition of the Land, being the put and call option agreements, unless expedition is granted, it is highly likely the Applicant will not be able proceed with its case or that it would be futile to do so. In essence the Applicant seeks a pathway to have its Application considered on its merits. However, with the passage of time since it lodged its Application, the Applicant could be denied its interest in the Land before a hearing and determination of its Summons, let alone the hearing and determination of any subsequent Class 1 application (assuming it was successful on its Summons), should the normal Court hearing timeframes prevail. Only by the grant of expedition would the Applicant have an opportunity to press its case within a timeframe when it continues to have rights to the Land. If expedition is not granted (and hypothetically assuming the proceedings remain before the Court), if it is later found by the Court that the Respondent Council did erroneously reject the Applicant's Application, then an injustice would thereby be confirmed as, despite its success, the Applicant's then victory would be a Pyrrhic one because it could no longer claim or develop the Land. 3. In the course of the hearing, testing the utility of a possible expedition order, the Court put the following scenario to the Applicant's counsel: accepting that one outcome of the Summons hearing might be that the Applicant satisfies the Court that the Application was validly lodged and so should have been accepted by the Respondent Council, should the Court not direct the Council to consider the Application in the usual course, in accordance with requirements of the law? With this scenario, the Respondent Council might then take sixty days to deliberate on the Application (assuming the proposal constitutes an integrated development) and only then, failing the grant of consent, the Applicant might be able to avail itself of the deemed refusal pathway to the Court (pursuant to s 8.11 EPA Act). If this was the proper pathway, the Court then asked whether the whole intent of an expedition order would be defeated, as the resultant timeline of a Class 1 application following a deemed refusal would extend far beyond the expiry of the contractual obligations enabling the Applicant to retain and develop the Land. 4. In response, counsel for the Applicant submitted that success on the Summons would not require the Application to be sent back to the Respondent Council, but rather the quicker and proper path would see: (a) the Application deemed to have been properly lodged on 20 December 2017 and/or 25 January 2018; (b) the sixty day deemed refusal period accepted as having been concluded; and (c) the Applicant having accrued the right to have a Class 1 application commenced forthwith, thereby enabling the Court to proceed straight to the listing and hearing of Class 1 proceedings. Although this scenario would clearly be one of the matters under consideration in the Summons hearing, the Applicant indicated that authority for this anticipated pathway was found in the judgment of Preston CJ in Crighton Properties Pty Limited v Kiama Municipal Council [2006] NSWLEC 297. Accordingly, the Applicant submitted that, given this identified expeditious pathway, there was no reason for the Court to be concerned that there would be no utility in ordering expedition. The litigation to date has been delayed through no fault of the applicant 1. Analysing the timeline, as explained by Mr Kondilios in his affidavit of 22 March 2018, I am satisfied that there is no basis to consider that the litigation to date – being the Summons and the Motion – has been delayed by the Applicant. The Court is satisfied that the Applicant has pressed its case at every opportunity, including in correspondence to the Respondent Council as soon as the issues regarding the rejected Application became apparent. The applicant is suffering hardship not caused through its own fault 1. The Court is satisfied that the Applicant faces imminent hardship of a very serious nature. Apart from being denied development opportunities in relation to the Land which it might conceivably lose, the effective financial penalties it would face amount to millions of dollars together with substantial professional fees which could all be irretrievable. Even if the substantial fees paid to the Respondent Council are refundable, the denial of an opportunity to secure the subject land and then potentially develop it, through no fault of its own, whilst suffering millions of dollars of loss would be unconscionable. If an order for expedition has the potential to avoid such probable hardship, then the order should be made. There is self-induced hardship 1. There is no evidence of self-induced hardship which might weigh against the grant of expedition. The nature of the case (for example, ejectment, child custody) 1. This factor is not relevant in this case. There are large sums of money involved 1. As already explained, the immediate loss of money to the Applicant amounts to millions of potentially irrecoverable dollars, whilst the deprivation of its rights to development the subject Land with the proposed 51 dwellings can be anticipated to equate to tens of millions of dollars. Such huge sums of money being at stake clearly weigh in favour of an order for expedition being made. Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed? 1. The Court accepts that the Applicant has proceeded up to the date of the hearing of the Motion for expedition with due speed. The Court also notes that the Respondent Council, by indicating that it would consent to an order for expedition, has acted responsibly. Are the parties willing to abridge the hearing time? 1. Having indicated to the parties the likely timeframe which might follow an order for expedition should I grant it, both parties indicated their willingness to accommodate the foreshadowed timeframe, including the provision of submissions ahead of the hearing. Conclusion 1. Having regard to the uncontested evidence set out in the affidavit of Mr Kondilios and after considering the submissions from the Applicant, the Court is satisfied that the Applicant has made out its case on the Motion and so I should make the orders sought to expedite these proceedings so that the issues addressed in the Summons can be determined. 2. Although the Court is yet to determine whether the Applicant should be granted the relief it seeks in its Summons, it follows from the hearing of the Motion seeking expedition of the Summons hearing, that in the event of the Applicant being successful on the Summons, (that is it succeeds in obtaining one or more of the declarations it seeks as relief), then its efforts in seeking expeditious consideration by the Court of the Application would be rendered nugatory if expedition was not also granted to the Class 1 application proceedings which must necessarily follow the Applicant being successful on the Summons. Therefore, in order for the Court to have the full parameters of the matters in issue before it, the Applicant should file a further notice of motion seeking expedition of the Class 1 proceedings which it would commence in the event that the Applicant is successful on the Summons. The hearing of the Summons would be heard concurrently with the hearing of this further notice of motion seeking expedition. Obviously, if the Applicant is not successful on the Summons, this further notice of motion would simply be dismissed. Orders 1. The Court orders that: 1. The Applicant's Motion filed 22 March 2018 is upheld. 2. The listing of the Summons before the List Judge at 9.15am on 20 April 2018 is vacated. 3. The hearing of the Applicant's Summons filed 9 March 2018 be expedited. 4. The Summons shall be set down for a one day hearing before Molesworth AJ on Monday 23 April 2018, commencing at 10.00am. 5. The Applicant is to file its written submissions and further evidence upon which it intends to rely, no later than 10.00am on Wednesday 18 April 2018. 6. The Respondent Council is to file its written submissions and any evidence upon which it intends to rely, no later than 10.00am on Friday 20 April 2018. 7. The costs on the Motion are reserved. 8. The parties shall have liberty to apply on 24 hours' notice. ********** 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: 13 April 2018