REGISTRAR: This matter comes before me today on a Notice of Motion filed by the applicant seeking expedition of the proceedings.
The proceedings concern an appeal by the applicant following the deemed refusal of a development application by the Council. The development application itself was lodged on 6 March 2014 and was subsequently amended on 8 August 2014. The appeal commencing the proceedings was filed on 2 April 2015.
The matter was before Commissioner O'Neill for a s 34 conference on 1 June 2015. Following the termination of that s 34 conference, the matter came back to the Court for further directions. Prior to the matter coming back for further directions, a Notice of Motion, which is presently before me, was filed on 5 June. Subsequently, when the matter came back for further directions on 9 June, the proceedings were stood over to the return of that Notice of Motion.
The context of the development application itself is somewhat unique and its history lengthy.
The development application is for the demolition of structures and the erection of a mixed-use development containing retail uses, a child-care centre and residential uses.
It is large in size comprising a total of three buildings. Those buildings range from 25, 27 and 13 storeys and are referred to variously in the Statement of Facts and Contentions as buildings A, B and C.
The development application is made on a site that falls within the North Ryde Station Urban Activation Precinct (the precinct). The precinct is located in the Macquarie Park corridor and is centred on vacant land around the station and a privately owned site. The planning process for the precinct has been managed by the Department of Planning (the department) and resulted in a site-specific planning regime for the precinct. The precinct is known as the North Ryde Station Precinct and consists of a number of precincts, one of which is called the Station Precinct, which includes the site of the subject development application.
Following the lodgement of the development application, a number of things occurred. The history is variously outlined in the Statement of Facts and Contentions filed by the respondent in the proceedings on 30 April and also in the affidavit of Mr Qian, which was sworn on 5 June and is read in support of the Notice of Motion currently before me. It is clear from that affidavit that the applicant was of the view that the development application would be approved. It was understood by the applicant that the application was recommended for approval and it was to be forwarded to the Joint Regional Planning Panel at its meeting of 26 March. Prior to that meeting, on or around 3 March, the applicant was forwarded an e-mail containing draft Conditions of Consent. However, following that, Mr Qian learned that that meeting had been cancelled. Subsequent to the cancellation of that meeting, the appeal the subject of these proceedings was lodged.
It is clear from the evidence of the applicant that the applicant was of the view that approval for the development application would be forthcoming. The applicant was also of the view that a s 34 conference would result in a resolution of the issues in the proceedings.
Subsequent to the termination of the s 34 conference, the Notice of Motion was filed soon thereafter.
Despite the development application not having been approved, the applicant, on the evidence of Mr Qian, makes it clear that 650 of the 830 residential apartments had been sold off-the-plan in reliance that that approval would be forthcoming. The evidence makes it clear that some work had been conducted in light of the approval that was thought to be forthcoming, and demolition was due to start in June. It is now the case that, on the evidence, the applicant stands to suffer hardship with delays in the construction of the development. The applicant submits that, in light of this hardship, expedition should be granted.
The applicant submits that, given the length of time that the development application has been with the council, there would be no prejudice suffered by the respondent if the proceedings were to be expedited. In particular, the applicant says there is sufficient time before the hearing for joint reporting to take place and that no other evidence would be necessary.
Counsel for the applicant, Ms Carpenter, has helpfully drawn my attention to [8] of the decision of Pepper J in Healthscope Limited v The Minister for Planning and Infrastructure Number 2 [2011] NSWLEC 237, and the principles for expedition enunciated therein.
In referring to those principles the applicant submits that if the hearing dates do not take place in the week of 6 July 2015, two of the expert witnesses will be unavailable until mid- to late August. In light of that, the applicant submits that it should not be subject to further delay that would result from the unavailability of those witnesses. That is clearly a matter that is outlined in [8] of Pepper J's decision.
Further, the applicant submits that the delay that has been experienced by it throughout the development application process is through no fault of the applicant itself. The applicant says, therefore, that it should not be forced to bear the financial implications that would result from further delay.
The respondent makes a number of submissions in response. Firstly, the respondent draws to my attention the fact that the financial hardship to be suffered comes as a result of the applicant itself taking the step of selling apartments off-the-plan before any approval had been granted. The respondent says that the applicant should not have drawn the inference from the draft Conditions of Consent that consent would be forthcoming.
Secondly, the respondent submits that, in assisting the Court's role in considering the factors contained in s 79 in the Environmental Planning and Assessment Act 1979 (the EPA Act), the respondent wants the opportunity to put on individual expert reports. Those individual expert reports would seek to address two areas. Firstly, the contention by the Council that the current development would create vehicular movement that cannot be accommodated by the current infrastructure and, secondly, the contention that the proposal for mixed-use development is more akin to a residential development and is therefore not appropriate for the site.
I note from the outset that this is not strictly an application for expedition. Rather, the applicant is seeking hearing dates in the week commencing 6 July 2015. What they are seeking, in effect, is a timetable for hearing that is compressed in order to take into account the availability of the experts. In determining whether to grant the hearing dates being sought, I will consider whether expedition should be granted.
In considering an application for expedition there are a number of factors to which I ought to turn my mind. Firstly, I ought to consider whether there is any special factor involved that warrants expedition. This is well established to be a factor for consideration. A number of special factors are identified in [8] of the decision of Pepper J in Healthscope Limited v The Minister for Planning.
In considering whether such a special factor exists, I must consider whether there is any reason why these proceedings stand out from other proceedings and ought to be given a hearing date ahead of proceedings that have been commenced prior to it. This could be considered in light of hardship that will be suffered by the applicant if it was forced to obtain a hearing date in the usual range. It is clear from what is cited by Pepper J in [8] that:
Where there are larger sums of money involved, that is a factor for the Court's consideration.
Secondly, the prejudice that might be suffered through financial hardship must be weighed against any prejudice that might be suffered by the Council if I were to make an order for expedition.
Finally, in proceedings of this nature, I am of the view that there is another factor that I ought to consider. This is not something that is articulated in Pepper J's decision and that is because the nature of those proceedings is different to the present proceedings.
These proceedings are Class 1 merit appeal proceedings where the Court exercises all of the functions of the consent authority and, in doing so, is required to consider all of the factors outlined in s 79C of the EPA Act. In light of this, I also need to be satisfied that if the proceedings are expedited the parties will still have the opportunity to put before the Court, albeit in an expedited fashion, all of the matters that will assist the Court to make a determination as the consent authority. Doing so is important because a development consent has implications, not only for the parties involved, but also for the community.
Whilst I accept, on the evidence, that there are likely to be financial consequences suffered by the applicant as a result of any further delay in the proceedings, I am of the view that such consequences are an inherent risk of an application of this nature.
Furthermore, it is clear that this hardship occurs as a result of the conduct of the applicant in taking the risk of selling apartments off-the-plan, before the plan had actually been approved. It is regrettable that the applicant has been put in a position where it believed that approval for the development would be forthcoming and it is unfortunate that the applicant has relied on that belief. However, in moving to sell the apartments, the applicant has taken a risk that may result in financial consequences. That is a risk that was open to the applicant to take, but it is not a matter that can then be used by the applicant to cause the Court to be compelled to expedite the proceedings.
Whilst I accept that the development application is of significant value to the applicant, being a development of $168 million, I do not accept that there is anything about this development that puts it at a greater risk of financial loss than other proceedings by developers in this Court. All developers take a risk when they lodge development applications. In taking that risk they can go to a great cost. That risk - and that cost - is an inherent factor in Class 1 proceedings concerning development appeals. Whilst the risk and the cost is greater as the size of development increases, it cannot be said that bigger developments should receive expedition every time they are considered by the Court.
I am therefore of the view that there is no special factor that warrants expedition of the proceedings and I would decline to grant expedition on that basis.
I should therefore turn to the point I raised earlier. That is, that expedition is strictly not necessarily to achieve what is sought by the Notice of Motion, but that a particular hearing date is sought for the proceedings.
In considering whether the proceedings should nonetheless proceed to a hearing on the dates sought by the applicant, I am of the view that the dates sought, being less than four weeks from today, do not give the parties sufficient time to prepare for the hearing and to put all the matters before the Court in satisfaction of the Court's obligations under the EPA Act.
Whilst I understand and accept that the Council has had this development application for some time, it has now retained new solicitors and new contentions will be filed in the proceedings. Accordingly, both parties should be afforded the opportunity to deal with those contentions in the usual course. The Practice Note provides that such a usual course would be six weeks from the directions hearing and I see no reason to depart from that usual six week period.
Obviously, I am prepared to accommodate some availability which, unfortunately, means that the hearing dates may be pushed back to August . But I understand that those experts have been involved for quite some time for the applicant and their availability should be taken into account in allocating hearing dates.
Therefore, I decline to make the orders that are sought in the Notice of Motion.
I understand, also, that order 3 is no longer pressed. I will make orders in accordance with C, D and E but otherwise I dismiss the Notice of Motion.
It is difficult to determine whether costs should be awarded where a party has moved the Court to seek orders but has failed in its application. In usual matters, as the parties would be aware, costs would follow the event. However, this is not a matter where costs would usually follow the event. That is, r 3.7 of the Land and Environment Court Rules 2007 requires that the Court be first satisfied that an order for costs is fair and reasonable before making such an order. As has been outlined by Ms Carpenter, there are a range of circumstances set out in r 3.7(3) that describe the circumstances in which the Court might consider it fair and reasonable to make a costs order.
That list is certainly not exhaustive, and there is a range of case law where the Court has found other circumstances in which it is fair and reasonable to make a costs order.
In making its application today, the applicant was ultimately unsuccessful, although it was not a case where it was open and shut. That is, it was open to the applicant, in light of the circumstances of the proceedings, to make an application for expedition (and there was nothing unfair or unreasonable about that application) even though that application has put the respondent to the costs of defending the Notice of Motion for expedition. I am not of the view that there was any conduct that makes it fair and reasonable for the applicant to bear the costs of the respondent in defending the application.
Therefore, I order that each party pay their own costs of the Notice of Motion.
[2]
Amendments
10 February 2016 - Corrections made to [8], [10], [11], [22], [23], [28], [30], [35], [37].
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Decision last updated: 10 February 2016