Boensch v City of Parramatta Council [2019] NSWLEC 1249

Land and Environment Court New South Wales

Medium Neutral Citation: Boensch v City of Parramatta Council [2019] NSWLEC 1249 Hearing dates: Hearing on 3-4 June 2019 Date of orders: 04 June 2019 Decision date: 04 June 2019 Jurisdiction: Class 2 Before: Gray C Decision: The Court orders that: (1) The Notice to Produce to the Court dated 19 May 2019 is set aside. Catchwords: INTERLOCUTORY APPLICATION – application to set aside a Notice to Produce to the Court – relevance – whether legitimate forensic purpose – whether documents sought will materially assist in the identified issue – Notice to Produce unacceptably broad – only some documents would assist Legislation Cited: Local Government Act 1993 Uniform Civil Procedure Rules 2005 Cases Cited: Regina v Saleam [1999] NSWCCA 86 Category: Procedural and other rulings Parties: Franz Boensch (Applicant) City of Parramatta Council (Respondent) Representation: Solicitors: C Campbell, Sparke Helmore (Respondent)

Other: F Boensch (self-represented) File Number(s): 2018/315838 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: In these proceedings the City of Parramatta Council has moved the Court to set aside a Notice to Produce to the Court issued by the Applicant, Mr Boensch. 2. The substantive proceedings are in their second day of a two day hearing. The proceedings are an appeal, by Mr Boensch, against an order made by the Council to remove a number of vehicles, trailers and other items located in a laneway behind his premises at 255 Victoria Road, Rydalmere ("the Laneway"). The order is issued pursuant to s 124 of the Local Government Act 1993. Item 27 of s 124 allows an order to be issued requiring a person "to remove an object or matter from a public place or prevent any object or matter being deposited there" if: The object or matter (a) is causing or is likely to cause an obstruction or encroachment of or on the public place and the obstruction or encroachment is not authorised by or under any Act, or (b) is causing or is likely to cause danger, annoyance or inconvenience to the public 1. On 19 May 2019, 5 business days prior to the hearing, Mr Boensch provided to the Council a Notice to Produce to Court, requiring the Council to produce what can be summarised as any and all documents relating to previous development applications for adjoining properties, as well as information about a right of way over 1 Bridge Street, Rydalmere that benefits 3-5 Bridge Street. The Notice was not filed in the registry, as is the practice. Mr Boensch, who represents himself, made it returnable on the first day of the hearing. Some of the documents sought therein have been produced by the Council and have been tendered in evidence in the proceedings. Those documents are the Notices of Assessment and assessment reports for DA150/2011, DA623/2015 and DA213/2010, as well as a letter of satisfaction of a deferred commencement condition. 2. At the hearing, the Council indicated that it was unable to obtain information pertaining to DA96/144/DK or BA806/96, as the files have been archived. Further, it indicated it was not willing to produce a number of other documents sought by the applicant, including an Occupation Certificate. As such, Mr Boensch presses his Notice to Produce to the Court, and the Council now moves the Court to set it aside on the basis of relevance and the breadth of the documents sought. The Notice to Produce seeks the production of the following documents: "1) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formats for DA96/144/DK 2) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] for BA806/96 3) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] for DA150/2011 4) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] for DA623/2015 5) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals' restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] for DA213/2010 6) Applications and related information provided too [sic] and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce the change or cancellation or addition to any condition for the applications in point 1 to 5 above. 7) Provide any additional information of application made in relation to 1 Bridge Street, Rydalmere and 3-5 wether approved or rejected and for what reasons. 8) All information to any applications made, approved or refused in relation to 255 Victoria Road Rydalmere. All information includes all information leading to and including assessments. Information considered relevant or not relevant. 9) Applications and related information provided too and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] in relation to an alleged right of way or a use of a right of way referred to in the Council Facts and contentions. Any other right of was relevant to the current application or if no application is ever been made to such right of way, what Parramatta Council involvement is in such possible alleged right of way and I or why such possible alleged right of way should not be expired or extinct that it has to be subject to these proceedings. 10) Provide documentation or reasons why it is that Parramatta Council Regulatory Department which made the orders in these proceedings, is acting in contrary to and known to act in the past contrary to the Parramatta Councils Development Department or decisions made and conditions imposed by Councils Development department in relations to the Properties referred to in the Parramatta Councils Facts and Contentions. In particular but not limited to 1 Bridge Street Rydalmere and 3-5 Bridge Street Rydalmere."