Land and Environment Court New South Wales Medium Neutral Citation: Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122 Hearing dates: 23 August 2019 Date of orders: 23 August 2019 Decision date: 23 August 2019 Jurisdiction: Class 4 Before: Pain J Decision: See [16] of judgment Catchwords: PRACTICE AND PROCEDURE – discretion exercised to order expedition of hearing of judicial review challenge to cycleway project in Bondi Junction Legislation Cited: Environmental Planning and Assessment Act 1979 Pt 5 Government Information (Public Access) Act 2009 State Environmental Planning Policy (Infrastructure) 2007 Uniform Civil Procedure Rules 2005 r 31.19 Cases Cited: Fullerton Cove Residents Act Group Inc v Dart Energy Ltd (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38 Greetings Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 Category: Procedural and other rulings Parties: Pittking Properties Pty Ltd (Applicant) Waverley Council (Respondent) Representation: COUNSEL: J Lazarus (Applicant) M Pearce, solicitor (Respondent) SOLICITORS: Reid & Vesely (Applicant) Maddocks (Respondent) File Number(s): 19/255402 EX TEMPORE Judgment 1. The Applicant's notice of motion dated 20 August 2019 seeks expedition of the final hearing of these judicial review proceedings commenced on 16 August 2019 and other procedural orders. I am determining this matter as list judge. 2. The Applicant has commenced a judicial review challenge to the decision of Waverley Council (the Council) to build a cycleway through Bondi Junction running in part along Spring Street (the Decision). Details of the multi-stage activity, approved under Pt 5 of the Environmental Planning and Assessment Act 1979 because the State Environmental Planning Policy (Infrastructure) 2007 applies, are identified in Ex A, the exhibit to the affidavit of Mr Reid solicitor for the Applicant dated 20 August 2019. 3. The Applicant's summons identifies three grounds of review: 1. a breach of s 5.5(1) of the EPA Act (former s 111(1)), failure to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity; 2. a breach of s 5.7(1) of the EPA Act (former s 112(1)), failure to obtain, be furnished with, examine or consider an environmental impact statement in respect of the activity in circumstances where the proposal is and was an activity that is likely to significantly affect the environment; and 3. that the activity purported to have been approved by the Decision is uncertain. 1. The affidavit of Mr Reid and its exhibit identifies that the Applicant owns the Royal Arcade running from Oxford Street to Spring Street. Mr Reid was engaged by the Applicant in 2014 to advise on the cycleway proposal which the Applicant opposes. He identifies steps taken by the Council and by him on behalf of the Applicant since 2014 in relation to the cycleway project. The decision to proceed by the Council was made on or about 29 May 2019. Mr Reid identifies steps taken since then to find out what the project decision was based on, requiring two Government Information (Public Access) Act 2009 (GIPA) requests to the Council as documents were not supplied by the Council without a GIPA request. The notice of commencement of work was received from the Council by email to the Applicant on 7 August 2019. 2. The Council does not oppose expedition being granted although presses for a later hearing date than the Applicant. The other procedural orders are not opposed. 3. Stage 1 of the cycleway project includes preparatory works for the new cycleway and has been undertaken. Stage 2 on the western end of Spring Street and Newland Street will commence on Monday 26 August 2019. I am informed that the cost of stage 2 is $4.2 million. 4. The Applicant submitted that the matter is of substantial public interest as the proposed route of the cycleway has potentially negative consequences for the safety of pedestrians and will unnecessarily disrupt traffic along Spring Street when better routes exist. 5. The Applicant wishes to call expert evidence of Mr McLaren traffic engineer on grounds (1) and (2). The estimated length of the hearing is two days. 6. The principles relevant to determining whether to grant expedition are identified in Greetings Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42-3 as follows: (1) Is this the appropriate Court for the litigation, in particular: (a) does the litigation fall into the work normally done by this Court; and (b) is there a sufficient nexus with New South Wales. (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. … (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. 1. I find in relation to the matters identified above that: 1. This court is the relevant court for the matter to be heard in. 2. Special factors include that the subject matter of the litigation will be lost if not heard quickly, the matter is of public importance and there has been no delay commencing proceedings on the part of the Applicant (which I accept based on Mr Reid's affidavit). 3. The notice of motion has been proceeded with quickly following notification of the commencement of work on stage 2. 4. Appropriate orders will be made to ensure the efficient use of the time up to hearing which will require the cooperation of the parties and the parties have agreed short minutes of order which will have that effect. 5. There are relatively early hearing dates available on 16 and 17 October 2019 which can be allocated. 1. An expert evidence direction is also sought by the Applicant under Uniform Civil Procedure Rules 2005 (UCPR) r 31.19. Pepper J in Fullerton Cove Residents Act Group Inc v Dart Energy Ltd (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38 (Fullerton Cove) considered Pt 5 of the EPA Act exhaustively (former ss 111 and 112) and there is no dispute that ground (2) concerning s 5.7 (former s 112) raises a question of jurisdictional fact, see Fullerton Cove at [300]. Expert evidence may be called in relation to that ground to inform the Court in making a decision. 2. The Council disputes that expert evidence can be called in relation to ground (1) concerning the duty to take into account to the fullest extent possible all matters affecting or likely to affect the environment, considered in Fullerton Cove at [142]-[145]. The Applicant relied on [144] in Fullerton Cove where Pepper J stated that a Prasad-like duty to inquire may enable expert or other extraneous evidence to be admissible to show what inquiries ought to have been made. Those statements appear to support the Applicant's argument that expert evidence can be called in relation to ground (1), in this case Mr McLaren who will attest to the matters in ground (1). These are already set out in some detail in the summons. 3. Given the rapidity with which this decision must be made I am not in a position to finally determine the Council's argument on this issue of the scope of the Court's review under s 5.5 of the EPA Act. I will not make an order preventing Mr McLaren from preparing material on ground (1) at this stage. This may well be an issue that can be revisited at the final hearing before the trial judge. 4. No interlocutory application has been made to date as I was informed the Applicant is reluctant to give an undertaking to pay damages given the substantial cost of the public works in issue. I identified in court that as the work is proceeding, in the event that the Applicant is successful in the proceedings the issue of the exercise of the Court's discretion in relation to the granting of relief may well arise regardless of how quickly a judge of the Court is able to give a final decision, particularly in the absence of an interlocutory injunction being sought. 5. The Applicant's notice of motion dated 20 August 2019 is upheld. Orders 1. The Court makes the following orders: 1. These proceedings be expedited. 2. By 30 August 2019, the Respondent to serve all documents that record matters relevant to the decision by the Respondent made on 17 May 2019 to proceed with the Bondi Junction cycleway along Spring Street, Bondi Junction. 3. By 6 September 2019, the Respondent is to file and serve: 1. its response to the summons; and 2. a written statement of reasons for the Decision which complies with r 4.3(b). 1. The costs of the Applicant's notice of motion dated 20 August 2019 be costs in the cause. 2. The Applicant has leave to serve expert traffic evidence pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005. 3. The Applicant to file and serve its expert evidence by 11 September 2019. 4. The Respondent to file and serve its expert evidence in reply by 30 September 2019. 5. The parties' traffic experts are to confer and provide a joint report in accordance with the Practice Note by 8 October 2019. 6. The Applicant is to file and serve the court book and the evidence book (including an agreed bundle of documents) by 10 October 2019. 7. The Respondent is to file and serve a summary of the Respondent's argument (not exceeding 10 pages) by 14 October 2019. 8. The Applicant is to file and serve a summary of the Applicant's argument in reply if the Applicant considers a reply is needed (not exceeding five pages) by 15 October 2019. 9. The matter is fixed for hearing on 16 and 17 October 2019. 10. Liberty to apply to the Duty Judge on 24 hours' notice. ********** Amendments 28 August 2019 - typographical error in par 2 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: 28 August 2019