Michael Ryan v Northern Regional Planning Panel (No 2) [2019] NSWLEC 167

Land and Environment Court New South Wales

Medium Neutral Citation: Michael Ryan v Northern Regional Planning Panel (No 2) [2019] NSWLEC 167 Hearing dates: 01 November 2019 Date of orders: 01 November 2019 Decision date: 01 November 2019 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [16] Catchwords: PRACTICE AND PROCEDURE – notice of motion filed by the applicant seeking leave to re-open case after receiving evidence and hearing argument in relation to an earlier notice of motion filed by the applicant seeking urgent interlocutory relief – motion dismissed Category: Procedural and other rulings Parties: Michael Ryan (Applicant) Northern Regional Planning Panel (First Respondent) Lismore City Council (Second Respondent) Winten (No 12) Pty Ltd (Third Respondent) W A Sexton (Fourth Respondent) Glorbill Pty Ltd (Fifth Respondent) Representation: Counsel: L M Saw (Applicant) V Walsh, solicitor (Third Respondent)

Solicitors: A Oshlack, agent (Applicant) Dentons (Third Respondent) File Number(s): 2019/00006908 Publication restriction: Nil

EX TEMPORE Judgment 1. Subsequent to a hearing on 31 October 2019 in relation to a notice of motion filed on 30 October 2019 by Michael Ryan ('applicant') seeking urgent interlocutory relief ('October Motion'), and shortly before judgment on the October Motion is due to be delivered at 2pm today, the applicant seeks to re-open his case and files in Court (with leave) a notice of motion dated 1 November 2019 ('November Motion'). 2. In the November Motion, the applicant seeks: 1 An order that this motion be listed on an urgent basis. 2 An order that leave be granted for the Applicant to re-open his case. 3 An order that David Milledge be permitted to attend the development site for the purposes of preparing a report on the impact on threatened species and threatened species habitats of the works undertaken on the site. 4 An order that Applicant's motion for an interlocutory injunction be adjourned. 5 Any other order the Court considers appropriate. 1. The applicant is represented by Ms L M Saw of counsel and the third respondent, Winten (No 12) Pty Ltd ('Winten'), is represented by Ms V Walsh, solicitor. 2. In support of the November Motion, the applicant reads, over the objection of Ms Walsh, the affidavit of Alan Oshlack, agent for the applicant, affirmed 1 November 2019. 3. For concision, I do not summarise the background of the matter and I refer to the facts to be set out in my judgment in relation to the October Motion which I will deliver after these reasons are given. 4. In summary, the affidavit of Mr Oshlack provides that: 1. this morning (1 November 2019), the applicant informed Mr Oshlack that he had taken further photographs of the site which Mr Oshlack thereafter forwarded to Ms Saw of counsel, and David Milledge, an ecologist retained by the applicant; 2. today, Mr Oshlack had a conversation with Robert Corowa, an Indigenous Elder, who accompanied the applicant at the site this morning; and 3. Mr Oshlack then spoke to Mr Milledge who indicated that he would "only need half a day if the Court allows me" to inspect the site in relation to the work shown in the photographs. Mr Milledge expressed some concern in relation to the area "impacted". 1. Mr Oshlack annexes to his affidavit the photographs taken by the applicant of works that are currently being undertaken at the site. As a result of those photographs and other correspondence, the applicant submits that the Court may have been misled at the hearing of the October Motion yesterday, particularly in relation to the extent of the work presently being undertaken at the site. 2. Ms Walsh indicates to the Court that Mr Beasley of senior counsel, who conducted the interlocutory hearing for Winten in relation to the October Motion yesterday, is unavailable at the short notice received, and neither she, nor her client, has had the opportunity to consider Mr Oshlack's more recent affidavit. 3. Having looked at the photographs which are not able to be precisely located or identified with the plans otherwise before the Court, and having considered the further evidence of Mr Oshlack and short submissions made by Ms Saw, I consider that the November Motion should be dismissed. My reasons follow. 4. The present application primarily seeks leave to re-open the hearing of the October Motion for interlocutory relief; an order that the applicant's expert (Mr Milledge) be permitted to attend the site for the purpose of preparing a further report; and an order that the October Motion for interlocutory relief be adjourned to facilitate this process. 5. I consider that the nature and extent of any further evidence is presently unknown; the time at which the further evidence will be prepared and finalised is unknown; and the need for a further hearing, the time likely to be involved in conducting that hearing, and the date thereof, is also unclear. 6. The evidence presently before the Court in the October Motion includes Mr Milledge's preliminary report dated 29 October 2019 ('Milledge Report'). For the reasons which I will shortly give in relation to the October Motion, I do not consider the Milledge Report to be persuasive or determinative so as to warrant granting urgent interlocutory relief in light of the applicant's concerns regarding microbats. That is not to say that at the substantive hearing, such or similar evidence may not be marshalled. While the level of detail in the Milledge Report is obviously a concern of the applicant, I anticipate that in due course, Mr Milledge will be in a position to prepare a more detailed report than that which is presently before the Court. 7. Having heard full argument from counsel on both sides yesterday, and having received and considered detailed evidence and submissions in relation to the interlocutory relief sought, I do not consider that any further hearing of the October Motion, which itself was brought on urgently by the applicant on one day's notice to the other parties, should be allowed. The determination of that motion for interlocutory relief should not be delayed so as to allow the applicant to attempt to marshal further expert evidence. 8. In reaching this conclusion, I have had regard to: the time at which the application was made; the fact that there has already been completed argument in relation to the relief sought in the October Motion; my view regarding the adequacy of the evidence presently marshalled in relation to the interlocutory relief sought; the unknown nature, extent and timing of the provision of any further evidence; and the fact that the applicant is not prevented from making a further application for relief if he is in a position to marshal evidence to do so. 9. As I have otherwise indicated during the course of the hearing of both the October Motion seeking interlocutory relief and the November Motion seeking to re-open, I am conscious that this matter is set down for final hearing in approximately 13 weeks' time. In the circumstances, I dismiss the November Motion and reserve costs.