Land and Environment Court New South Wales Medium Neutral Citation: Sell and Parker Proprietary Limited v Auto-recyclers Pty Limited T/as Pick'n Payless Self Serve Auto Parts [2019] NSWLEC 36 Hearing dates: 26 and 27 March 2019 Date of orders: 27 March 2019 Decision date: 28 March 2019 Jurisdiction: Class 4 Before: Moore J Decision: (1) Notice of Motion dismissed; (2) Costs reserved before Moore J. Catchwords: APPLICATION TO VACATE HEARING - late application - pending development application - public safety risks - if hearing vacated for a period, no appropriate early dates available for deferred hearing - public safety matters not adequately addressed - application refused Category: Procedural and other rulings Parties: Sell and Parker Pty Limited (Applicant) Auto-Recyclers Pty Limited T/as Pick'n Payless Self Serve Auto Parts (First Respondent) Blacktown City Council (Second Respondent) Barker Ryan Stewart Pty Ltd (Third Respondent) Representation: Counsel: Mr J Hutton, barrister (Applicant/Respondent on the Motion) Mr N Williams SC/Mr A Shearer, barrister (First Respondent/Applicant on the Motion) Solicitors: Allens (Applicant/Respondent on the Motion) Bartier Perry (Second Respondent) Addisons (First and Third Respondents/Applicant on the Motion) File Number(s): 27087 of 2018 Publication restriction: No JUDGMENT 1. HIS HONOUR: On 25 January 2018, Sell and Parker Pty Limited (Sell and Parker) commenced these Class 4 judicial review proceedings challenging the validity of a development consent issued to Auto-Recyclers Pty Limited T/as Pick'n Payless Self Serve Auto Parts (Payless) by Blacktown City Council (the Council). In addition to Payless and the Council, there is a third respondent, Barker Ryan Stewart Pty Limited. This entity has played no part in the Motion addressed by this judgment. 2. I should note that Sell and Parker and Payless are immediate neighbours in an industrial estate at Kings Park in Sydney's western suburbs. Sell and Parker and Payless are direct commercial competitors in the metal recycling business. 3. On 20 March 2019, Payless filed a Notice of Motion seeking that those hearing dates be vacated and that the matter be listed on 11 April 2019 for further directions. The motion did not seek that the matter be set down for further hearing dates, merely deferred for further directions. 4. On 27 March 2019, I dismissed the Notice of Motion and reserved the question of costs of the Motion. These are my reasons for so doing. 5. The particular element of the 1996 development consent that had been issued by the Council to Payless, which was being challenged by Sell and Parker, concerned the installation of a hammermill by Payless and the Council's conclusion that the installation of this equipment was ancillary to the 1996 development consent. It is unnecessary, for the purposes of this Notice of Motion to vacate the hearing dates, to do more than merely note that that is the position. 6. I should observe that the basis upon which Payless sought to vacate the hearing was that it had made two further applications to the Council. The favourable determination of both of which would, in Payless's submission, render potential pursuit of the present proceedings otiose. The first of the applications, a modification application to a consent held by Payless, had been approved by the Council in January 2019. However, the second application to the Council, a development application seeking specific consent for relocation of the hammermill, to a location further to the north-west on Payless's site compared to its present location in the vicinity of the western boundary of the site at approximately the midpoint of the site, had not yet been determined by the Council. 7. As recently as 14 March 2019, the Council had advised Payless that, I was informed, a determination of that development application was proposed to be made in the next few working days. However, although more than a few working days had elapsed since the giving by the Council of that advice, no determination had yet been made as at the date of my hearing of this Motion. 8. After a number of interlocutory hearings during 2018 (eight on my count of the file notes), on 21 September 2018 Preston CJ set the matter down for a two-day hearing commencing on Monday 1 April 2019. 9. The Notice of Motion was listed before me, as the Duty Judge, for hearing on 26 March 2019. On that occasion, Payless read affidavits from: * Ms Katherine Blunden (20 and 26 March 2019) - Ms Blunden is a solicitor employed by Payless's legal representatives. 1. Sell and Parker read affidavits from: * Mr Dennis Smith (21 March 2019) - Mr Smith is a solicitor employed by Sell and Parker's legal representatives; and * Mr Luke Parker (28 February 2019) - Mr Parker is one of the principals of Sell and Parker. A folder of material was exhibited to Mr Parker's affidavit. 1. For present purposes, two particular elements of this evidence warrant being noted. First, Mr Parker's affidavit provided evidence of past fires and an equipment explosion on Payless's property. The 26 March 2019 affidavit of Ms Blunden, on behalf of Payless, provided evidence of what steps were said to have been taken by Payless to adopt precautionary measures against risks which might arise if there was a further fire on Payless's site. This evidence was given by her on the basis of her acceptance of the accuracy of information provided to her by Mr Rush, a guiding mind of Payless. No criticism is levelled at her by me for her giving evidence in this fashion. 2. It is important to note, at this point, the relevant elements of her affidavit concerning these prophylactic measures said to have been undertaken by Payless. Her affidavit recorded, at (26) and (27), the following: 26 On 12 March 2019 at 7:30am a toolbox safety meeting was held with all employees present and this was conducted by Mr Rush. During the meeting it was agreed that an accident investigation was to be conducted by Darren Rye Operations Manager Rush Metals and Gina Moutzouris from Morasey Pty Ltd Workplace Health and Safety consultants. After consulting with the employees, it was determined that shredding would not recommence until the following actions had taken place: a. Remove car bodies from next to the stockpile of floc and ensure that this practice will never happen again. b. Remove all floc from the processing area and place it in the bunded area on the western side of the yard away from any possible ignition source. c. Purchase 3000 litre fire truck that is to be situated near the floc pile whilst the shredder is in operation. d. Install 120,000 litre water tank (this has already been purchased and is currently awaiting installation). e. No less than 7 employees are required, for operation whilst the shredder is running, with 1 employee to be dedicated to monitoring the floc pile closely looking for any fire risks. f. No more than 2 days of floc to be stored in processing area, and whilst operating the area under the discharge conveyor is to be cleared regularly in order to minimise fire risk. g. Install safety signs throughout the entire premises. h. Employees to be issued with wallet sized safety cards. 27 I have been informed by Mr Garry Rush that all of the above steps have now been implemented (save for the installation of the tank, as referred to above). 1. During the course of the hearing before me on 26 March 2019, I expressed concern to Mr Williams SC, counsel appearing for Payless, that I had reservations about the safety response set out in (26) of Ms Blunden's affidavit, particularly the position that the 120,000-litre water tank had not been installed and no information was provided as to what would be the timeframe for such installation. 2. I indicated that, if I was prepared to contemplate vacating the hearing dates, I would only be prepared to do so on two bases. The first, an evidentiary one, was that I had proper and satisfactory evidence concerning implementation of the safety measures described by Ms Blunden. 3. The second was that such an adjournment would only be appropriate for a comparatively short period and that I would wish to set the matter down, not on the basis of adjournment for future directions on 11 April 2019 with no defined substantive hearing dates, but to set the matter down for a substantive hearing in late April or early May 2019, in addition to any date for further directions. 4. I adjourned the matter until the afternoon of Wednesday 27 March 2019 at 2.00 pm to permit Payless to put on further evidence responsive to my concerns. 5. The position adopted by Sell and Parker, through its counsel, Mr Hutton, was that the recent fire, as well as past incidents on Payless's site, did not render the present proceedings irrelevant, particularly in circumstances where, even if a fresh development consent was granted by the Council, the terms upon which that consent was granted might be unacceptable to Payless resulting in that consent not being taken up. 6. Second, he submitted, there was no guarantee from Payless that, if a new consent was issued and taken up, the 1996 development consent would be surrendered. 7. Under those circumstances, and given the imminence of the hearing dates (dates that had been set some six months earlier), he submitted it was not appropriate to vacate the hearing dates at all, let alone on the basis sought by Payless. 8. I gave leave to Payless to put on any further evidence upon which it proposed to rely by 12.00 noon the following day. As earlier noted, I adjourned the matter for further hearing at 2.00 pm on the following day. No leave was sought by Sell and Parker to file any further evidence. 9. At the time of the passing of the deadline for Payless to provide further material, no such material had been filed. However, two further affidavits were subsequently filed for Sell and Parker (well before the 2.00 pm resumption), being further affidavits by Mr Smith and Mr Parker. 10. When the matter resumed at 2.00 pm on 27 March 2019, Mr Williams advised me that he was instructed that Payless would proffer an undertaking concerning operation of the hammermill, with that undertaking being based on the material set out in Ms Blunden's affidavit, as quoted above at [12]. Although the undertakings were potentially in the alternative, and had not been crystallised with precision, those undertakings were based on (26) of Ms Blunden's affidavit and on the assumption, consistent with Mr Williams' instructions, that that element of her affidavit accurately set out the current position. 11. Whilst I did not permit the reading of the further affidavit of Mr Parker, being the affidavit filed earlier that day, I did permit Mr Hutton to take me to a number of photographs appended to that affidavit, which were said to have been taken by drone late on the afternoon of 26 March 2019. Mr Williams did not object to this course of events. 12. Mr Hutton asked me to examine what was depicted on the first of those photographs when compared to a photograph from generally the same perspective of the Payless site which formed part of the material exhibited to the earlier affidavit of Mr Parker dated 28 February 2019 (which had been read on Payless's Notice of Motion the previous day). It is unnecessary to describe what was depicted in those two photographs in any detail. It is, however, sufficient to observe that the matters deposed by Ms Blunden in (26)(a) and (b) earlier set out had, contrary to what was said by her in her affidavit, not taken place either completely (with respect to (a)) or at all (with respect to (b)). 13. Whilst I had indicated to Mr Williams that I had been prepared to contemplate vacating the hearing dates on the basis of: 1. An appropriate undertaking concerning activities on the site and safety measures taken with respect to them; 2. A directions hearing before me (as I was now apprised of the necessary relevant information) shortly prior to Easter; and 3. Setting the matter down for a final hearing in late April or early May 2019, the position which now arose concerning the erroneous information relating to the alleged safety measures, when coupled with the fact that, on examination of the Court diary, I was unable to confirm that hearing dates would be available in a sufficiently early time period to deal with the substantive proceedings that, for public safety reasons, I was unable to agree to vacate the hearing dates. 1. As consequence, I dismissed the Notice of Motion and reserved the question of costs of the Motion to be dealt with by me if there was some application for a costs order. I did this rather than deferring the question of the costs of the Motion to the trial judge who would not have the intimate knowledge of the circumstances of the Notice of Motion hearing appropriate to deal with that question. ********** Amendments 29 March 2019 - Two typographical errors in the catchwords and one in each of [13] and [26] amended 29 March 2019. 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: 29 March 2019