Berlyn Properties Pty Ltd v Liverpool City Council and Lynette Goldsmith [2006] NSWLEC 526 | Case summary

EX TEMPORE JUDGMENT 1 Talbot J: This case is a little bit outside the ordinary set of circumstances. The matter is listed for hearing for a number of days commencing on 28 August 2006. The council has raised a number of issues. I am told that they relate generally speaking, although not necessarily exclusively, to matters regarding ecology and flooding in respect of the proposed alternative development for the site. What the council has not done is raise an issue in regard to the social impact of carrying out the development in terms of the consequences for the existing occupiers, or at least some of the existing occupiers of what is currently broadly described as a caravan park. 2 Mr Eastman, for the second respondent, has assiduously taken me to legislation which protects the interests of tenants in a caravan park such as the one that is the subject of these proceedings, and has indicated that his client is protected from eviction until such time as there is a development consent in place which allows a person, such as the present applicant, to proceed with an alternative development. 3 The development application was lodged with the council late in 2005 and in the absence of a determination by the council the applicant has appealed against the deemed refusal of consent. I am informed and it appears to be common ground, that the applicant and the first respondent have agreed that the development application can be referred to an assessment panel of the council for consideration and report to council at its meeting on 25 September 2006. I am also informed that the applicant and the first respondent would prefer for that course to be undertaken in lieu of incurring any further costs in the litigation at least until the outcome of that process is known. 4 If, following the assessment panel recommendation, the council refuses consent then the appeal proceedings will remain on foot. If the council grants consent then other considerations apply. They do not include any right of appeal on the part of the present second respondent or anyone in the same interest. There is of course nevertheless an opportunity to challenge any consent in class 4 proceedings, but that is a more limited opportunity than that which applies in these class 1 proceedings. 5 Mr Eastman forcefully puts to the Court that it is preferable in the circumstances and in his client's interests for the merits of the development application to be considered fully within the ambit of s 39 of the Land and Environment Court Act 1979 ("the Court Act"). In that case the Court would be placed in the shoes of the council. There are safeguards he identifies that would be to the advantage of his client. The Court is given a number of directions by that section as to the manner in which it should deal with appeals. 6 The difficulty with the submission that Mr Eastman makes is that it is not supported by any evidence which goes beyond a concern or an expectation rightly or wrongly held on behalf of his client and others who are in the same interest, that the matter will be decided by council otherwise than in their best interests. 7 There is no evidence produced to me that bespeaks of corruption or other improper behaviour contemplated by any person representing the council much less the councillors of Liverpool City Council. It is merely that the second respondents would or do consider that they are more likely to be given a full, fair and proper hearing before this Court than if the matter is allowed to go through the council processes of a hearing and report by the assessment panel and ultimately a determination by the council itself based upon that report and any other relevant material that is placed before the council in accordance with the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 8 Mr Eastman draws my attention to the assessment panel rules which in some respects limit the procedures, for example the time for address is only nominally restricted to three minutes. However there is a wide discretion to extend the time for address. It would be extraordinary in the extreme if the assessment panel will not have the opportunity to peruse the whole of the evidence. I am told the evidence includes a report covering something like 400 pages, 165 odd pages of which is written opinion. I expect the evidence in some form will be made available to the assessment panel and considered by it before any report is formulated for consideration by the council. 9 It has already been decided by this Court, quite correctly in my view by the learned Registrar, that s 39A is satisfied, as it is obviously in the interests of justice that the second respondents be joined, in the public interest or at least that it could be in the public interest. Therefore they are to be heard at the hearing as a party to the appeal. Clearly they were able to raise issues that should be considered. Although it was put to me that the Registrar's decision went further, nevertheless that is the extent to which s 39A extends. I agree that the joinder of the party in these circumstances is well and truly justified. 10 It is equally justified that the assessment panel, but in particular the council, give proper full and adequate consideration to the issues which are raised by the second respondent before a determination of the development application is made. In the absence of evidence, or even an accusation that the processes proposed to be undertaken by the council are likely to be unjust, unlawful or otherwise not properly performed, I have great difficulty in understanding how the Court can justify forcing the applicant and the first respondent to litigate in circumstances where they both agree that the alternative procedure is preferable. 11 Mr Eastman refers to the decision by Bignold J in the case of Jenkins v Leichhardt Council (2000) 108 LGERA 426 where His Honour explained certain circumstances where the Court had an important role to play pursuant to s 38 of the Court Act, and that it was his duty to consider all of the obligations placed upon him as the Court before making consent orders. As I indicated during Mr Eastman's very competent submission, the issue of consent orders does not arise in these circumstances. Ultimately the council can decide to grant consent as it is entitled to do pursuant to s 82 of the EP&A Act. It is an important consideration that the legislation itself anticipates that a council can still proceed to exercise the power given to it under the Act. In that respect I take particular account of s 82. 12 The time for the consideration of the matters arising under s 39 do not apply to the circumstances where two of the parties are seeking to adjourn the proceedings on the basis that they perceive there is an equal, or even more effective, way of resolving their differences but without the costs involved in litigation. 13 It is certainly a matter for concern that the second respondent is of the class of persons who may ultimately suffer eviction from what they consider to be their homes. It is quite rightly so, particularly as it can occur following the grant of a development consent. The prospect of that occurring in theory should be no different whether it goes to the council or whether it goes to the Court. There is certainly no evidence to the contrary before me, apart from the fact that the council does not raise the same issue specifically. It nevertheless was prepared to call the second respondent and other witnesses in the same interest to give evidence in its case even though it did not specifically support the objections that they made. 14 It would be a very brave council that decided to grant development consent without properly, fully and adequately in a legal sense taking into account the issues the second respondent raises particularly having regard to these reasons and the finding of the Registrar that the second respondent is raising an issue that should be considered. It is the determination of this Court that the issue should be considered in relation to the appeal. That should equally apply to the council for the purpose of its determination. Having said that (notwithstanding the submissions made by for the second respondent) it only reinforces my view that it is appropriate for the council to be given first opportunity to make an actual determination of the development application. 15 I am not satisfied therefore that the issues raised by the second respondent justify refusing to make an order to vacate the hearing date. That is the sole relief that the Court is being asked to grant. In the circumstances and for the reasons that I have outlined and nonetheless appreciating the emotional distress that may be caused to the second respondent and those in the same interest I propose to make the order. The comfort that the second respondent and those in the same interests can glean from the ventilation of the issues this morning is, as I said a moment ago, the council as a consequence of this hearing will be fully alerted to and has had emphasised for it, and for the consideration by its assessment panel, the importance of the issues that are raised by the second respondent. 16 I am confident that not only will the assessment panel deal with those issues in an adequate way it will not restrict the submissions to be made to the nominal three minutes indicated in the rules. One would expect having regard to the width of the submission and the number of persons who are interested in the outcome that the issues will be fully ventilated and a proper and full opportunity be given for not only those matters to be articulated and understood by the assessment panel but also at the council meeting, when the matter goes before the council. Clearly where there are such a large number of people with a public interest one would also expect that the matter would go to a full council. The Court recognises that in the absence of anything to the contrary the council should properly and fully consider submissions from the second respondent and if necessary allow the second respondent and those in similar interests to be fully and adequately heard. Firstly by way of written submissions and secondly by address of the council when the matter comes before it prior to making its determination. I make orders 1 and 3 in the notice of motion.

Berlyn Properties Pty Ltd v Liverpool City Council and Lynette Goldsmith

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Judgment (15 paragraphs)

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