Calardu Penrith Pty Ltd v Pipven Pty Ltd

THIRD RESPONDENT: Broxtan Pty Ltd

FOURTH RESPONDENT: Penrith City Council

KEY ISSUES: PRACTICE AND PROCEDURE :- application to vacate hearing date of class 4 proceedings challenging validity of development consent pending determination of fresh development application for consent.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 104A, 124(3)

CASES CITED: Sahade v The Owners - Strata Plan No. 62022 [2006] NSWLEC 770

APPLICANT: Mr A. Bannon SC, Mr R. Lancaster SOLICITORS Mallesons Stephen Jaques

FIRST RESPONDENT: Ms M. Allars SOLICITORS Deacons

SECOND RESPONDENT: LEGAL REPRESENTATIVES: Mr M. Staunton SOLICITORS TressCox

THIRD RESPONDENT: Mr D. Miller SOLICITOR Swaab Attorneys

FOURTH RESPONDENT: Mr P. Vergotis (solicitor) SOLICITORS DLA Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: This is a motion by the first respondent to adjourn these Class 4 proceedings challenging the validity of a development consent pending determination of its proposed new development application to obtain consent. More particularly, the motion seeks to vacate the hearing dates in about three weeks time and to suspend the timetable for preparation for the hearing. The motion is opposed by the applicant, consented to by the second respondent and not opposed by the third and fourth respondents. 2 In the substantive proceedings, the applicant challenges the validity of (a) a development consent granted on 16 July 2008 to the first respondent by the fourth respondent council for the redevelopment of the first respondent's retail SupaCenta at Jamisontown, (b) a consent to modification granted on 30 March 2009, and (c) a construction certificate issued on 1 June 2009 to the third respondent (the first respondent's builder) by the second respondent (an accredited certifier). In addition, the applicant seeks a mandatory injunction that the first and third respondents demolish and remove a concrete slab constructed on a large carpark on the development site, purportedly pursuant to the development consent and the construction certificate. The alleged grounds of invalidity of the development consent include failure to comply with statutory and common law procedural fairness requirements for notification of the development application to the applicant in these proceedings.

3 The proceedings were commenced on 25 June 2009. The applicant was granted expedition. On 1 July the matter was listed for hearing on 10-14 August 2009 and a detailed timetable made for pre-trial steps. The timetable was amended on 10 July. The timetable has been followed to the point where the applicant has filed its points of claim and affidavits. The respondents' points of defence and affidavits are due on 30 July (in about one week). Yesterday, the applicant obtained leave to amend its summons.

4 The first respondent proposes to submit the new development application to the council within two weeks, that is, by 5 August. The council informed me that it will expedite determination of the new application and expects to determine it within two months of receipt.

5 The first respondent offers an undertaking to the Court to surrender the existing challenged development consent if the proposed development application is successful (subject to liberty to apply to the Court to be released from the undertaking in certain circumstances). In those circumstances, the first respondent submits, the present proceedings will become academic. That seems to me to be correct.

6 The plans and reports for the fresh development application are still in the course of preparation. The evidence indicates that it will be of reduced scope compared with the challenged development consent, will be consistent with a modification application submitted in May 2009 and will seek consent to construct and use a building for the purposes of bulky goods retail and ancillary uses upon the partially constructed slab referred to at [2] above. The first respondent's decision to lodge a new development application was made on 13 July 2009 in light of council's refusal on 6 July 2009 of that modification application. A stated ground of refusal, in effect, was that what was proposed was not a mere modification. Between 13 and 20 July the first respondent obtained legal advice in relation to the new development application and met with its financiers, and on 20 July gave written notice to the applicant of its proposed motion.

7 The Court is empowered to adjourn proceedings in such circumstances by s 124(3) of the Environmental Planning and Assessment Act 1979, which provides: " 124 Orders of the Court

(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned." 8 As stated in Sahade v The Owners - Strata Plan No. 62022 [2006] NSWLEC 770 at [10] per Jagot J: "In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined."

9 In filing this notice of motion and attending to lodgement of a fresh development application, the first respondent has acted in a manner which is prima facie within the contemplation of s 124(3)(a) and designed to avoid the unnecessary incurring of costs. The first respondent seeks to satisfy s 124(3)(b) by offering an undertaking to the Court not to carry out any further work in reliance upon the challenged development consent and construction certificate until the new development application has been finally determined or until further order of the Court.

10 The applicant submits that the hearing dates should not be vacated and that there should be no suspension of the timetable having regard to the following considerations. 11 First, the applicant says it has incurred substantial costs in complying with its obligations under the Court's timetable of 1 July 2009. Secondly, the applicant submits that not much is known about the proposed new development application. I think that sufficient information is known about it for present purposes, as summarised at [6]. Thirdly, the applicant submits that the proposed new development application may take a considerable time to determine, given that the challenged development application took about six months to determine. I think that this point is substantially met by the council's information to the Court that it expects to process the application within two months of receipt and by the first respondent's evidence that it proposes to lodge the application within two weeks, which I think should be imposed as a term of granting relief if it is otherwise successful on the motion.

12 Fourthly, the applicant submits that the motion is premature because it is not yet known whether there is any defence to the proceedings as the respondents have not yet filed their points of defence and evidence. It is true that the defence, if any, is not yet known. But the sting in the submission is substantially diverted by the first respondent's response that the applicant has amended its summons as recently as yesterday, they have just been served with many documents by the applicant, they have issued outstanding subpoenas for production of documents in an endeavour to assess the applicant's grounds for alleging invalidity, the timetable gives them until 30 July to file points of defence and affidavits and cannot reasonably be advanced, they do not wish to continue to incur costs unnecessarily, and they have moved promptly to seek relief as envisaged by s 124(3).

13 Finally, the applicant submits that delay in determining these proceedings would prejudice the applicant because the development on the first respondent's carpark, which the applicant alleges is unlawful, is having the consequence that the first respondent's SupaCenta customers are using and putting pressure on the applicant's adjoining carpark associated with the applicant's Homemaker Centre and that this has the potential to damage that centre's trade particularly in the busy Christmas period.

14 Prior to commencement of construction, there were shared parking arrangements for both the SupaCenta and the Homemaker Centre. That is to say, the applicant and the respondent each owned adjacent surface parking areas which were not separated in any way and which were used indiscriminately by shoppers at their respective shopping centres. It appears that this shared parking arrangement had approximately 340 surface parking spaces, and that as a result of the construction work there has been a loss of 269 surface parking spaces.

15 There is expert evidence, albeit of a rather general nature, that a reduction in surface parking in a precinct such as this has the potential for a significant long term effect on sales; that the current reduction in surface parking is likely to be having a negative effect; that the problem is likely to be exacerbated in the busiest retail months of December/ January; that the Homemaker Centre parking area has been observed to be highly utilised; and that as a result there is significant potential for Homemaker Centre shoppers to find the Homemaker Centre parking area close to capacity, with the potential for these shoppers to go elsewhere for their shopping. There is also evidence of traffic congestion from the arrangements of the construction of the SupaCenta, although it is unclear whether that relates to construction activity which would cease under the first respondent's undertaking offered to the Court. On the other hand, the SupaCenta also has a large basement parking area, with about 520 parking spaces, which I understand is available to all shoppers. There is evidence that it was observed on a Saturday in June to be only approximately half full. That suggests that ample parking is available for shoppers notwithstanding the loss of the first respondent's parking area. However, there is evidence that basement parking is less attractive to shoppers compared with surface parking.

16 The applicant's submission appears to assume that the applicant's success in these proceedings and rejection of the fresh development application will result in restoration of the status quo ante. That is legally problematic on the limited evidence before me because (as the first respondent indicates) it is not apparent that, in those circumstances, the first respondent would be under a legal obligation to revert to using this area as a carpark or to refrain from fencing it off. Whether that would occur in those circumstances without legal obligation may be another matter and is unclear.

17 A further difficulty in establishing substantial prejudice arises from the timing of events. If the hearing dates are not vacated there is a substantial prospect that judgment would be reserved and would not be delivered until about the same time, at least, as the development application is determined; that is, in October 2009. Assume that the applicant is entirely successful in the proceedings, leave aside the question whether the demolition order could be executed before the peak Christmas trading season with which the applicant appears to be particularly concerned, and leave aside whether that would result in reversion to use as a carpark. There would then appear to be a substantial prospect that any demolition order would be stayed until the development application and any appeal from refusal were determined. In such circumstances the prejudice to the applicant in declining to vacate the hearing dates would not appear to be substantial.

18 Having regard to the intent of s 124(3) and the first respondent's proposed undertakings to the Court, and after weighing the other considerations discussed above, I consider that the hearing dates should be vacated and the timetable suspended pending determination of the new development application.

19 Upon the first respondent by its counsel undertaking to the Court that (a) it will not carry out any further construction work at 13-23 Pattys Place, Jamisontown in reliance upon the consent to DA 07/1418 and construction certificate CC09/2271-3 until a new development application, to be submitted by the first respondent to the fourth respondent, has been finally determined or until further order of the Court; and (b) upon the final determination by grant of a consent to the said new development application, the first respondent will surrender development consent DA 07/1418, either in compliance with any condition of such consent or otherwise pursuant to s 104A of the Environmental Planning and Assessment Act 1979 ;

1. that the hearing dates of 10-14 August 2009 be vacated; 2. that the timetable set by the Court on 1 July 2009, and amended on 10 July 2009, be suspended; 3. that the first respondent submit the said new development application to the fourth respondent on or before 5 August 2009; 4. that the applicant and the first respondent list the matter before the List Judge promptly after the fourth respondent has determined the said new development application and in any event no later than 16 October 2009; 5. that the costs of the first respondent's notice of motion filed on 22 July 2009 are reserved; 6. Liberty to the first respondent to apply promptly to the Court to be released from undertaking (b) above in the event that deferred development consent is granted to the said new development application or in the event of a condition of consent to the said new development application with which the first respondent cannot or does not wish to comply.

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.