3. Within 14 days of the 20 October 1999 the Respondent Companies are to file with the Tribunal and furnish to the other parties who appeared on that date with a written request for further and better particulars which request is to specify each particular allegation of fact in the enforcement order application in relation to which further particulars are sought and which further specifies each particular about such allegation that is required. Further and better particulars in relation to this request, or a written statement that no such further particulars will be given, is to be provided to Mr McMullan by the solicitors for the Responsible Authority within 21 days of the delivery of such request and a copy of such particulars or statement is to be filed with the Tribunal. If the Respondent Companies are not satisfied with such further particulars they must apply for a directions hearing in relation to the question of further particulars within seven (7) days of the provision of such particulars or statement failing which it will be presumed that the particulars provided are sufficient.

4. Within 14 days of the 22 October 1999 the Respondent Companies are to provide to the other parties who appeared on the 22 October 1999 with a statement of the continuing use rights which those companies claim to enjoy in relation to the land and which they rely upon in relation to the enforcement order application as a first step in the preparation of an agreed statement of facts in relation to the existence and extent of such rights. If an agreed statement of such rights is arrived at between the parties who appeared on 22 October 1999 within a further 14 days a copy thereof, confirmed on behalf of each such party, is to be filed with the Tribunal. If full agreement thereto cannot be reached, then a statement specifying the matters agreed upon, and those in dispute is to be prepared, confirmed on behalf of such parties and filed within the said period of 14 days.

5. If a continuing dispute exists as to these matters, then the Respondent Companies are to provide written particulars in relation to their allegation that existing use rights exist including a list specifying all relevant planning controls that are relevant or that will need to be relied upon (that is to say planning schemes, interim development orders and/or planning by-laws) and a short statement of material facts (including any necessary particulars) that are relied upon as establishing such rights to the Tribunal and the other parties who appeared on 22 October 1999 within a further 14 days.

6. The question of discovery of documents is reserved. If the parties are unable to agree, and arrange for discovery between themselves, then a further directions hearing is to be applied for. The parties, for the purpose of this direction, means those who appeared on the 22 October 1999.

7. Liberty to apply for further orders or directions is reserved in relation to discovery and generally.

8. Any party proposing to call a witness is to file with the Tribunal, serve on each other party who appeared on the 22 October 1999 and provide to the Responsible Authority a copy of a written report containing the evidence

in-chief of any expert witness and a written statement of evidence in relation to any non-expert witness not less than five (5) clear working days before the date fixed for the hearing of this case. In the event of such documents being filed and furnished, a letter is to be sent to any other party who did not so appear advising that such documents can be perused at the Offices of the Responsible Authority.

9. The costs of Mr Dickens and Mr Check in relation to the adjourned hearing originally fixed for the 20 October 1999 are reserved.

Ms Adeline Lane, solicitor of the firm of Maddock Lonie & Chisholm, solicitors, appeared for the Responsible Authority.

Mr J McMullan, solicitor appeared for the Respondent Companies.

Mr J Gobbo, barrister, appeared on the instructions of the firm of Williams & Williams Weblaw for Mr Ken Dickens and Mr Ivan Check.

Application under s. 114 of the Planning and Environment Act 1987 (PE Act) for an enforcement order.

Construction of buildings and work without obtaining planning permission required by the planning scheme and contravention of the conditions of planning permit

96-325 issued by the Responsible Authority on 17 October 1997 which permit allowed construction of buildings and works in accordance with endorsed plans.

1. Mr Gobbo expressed concern as to how the hearing of this case, which had been fixed for a hearing of one day on Wednesday 20 October 1999, was adjourned without notice to his client. The history of this aspect of the case was traced through with some care. It appears that a letter from his instructing solicitors of the 15 September 1999 to the Registrar failed to reach the Tribunal's file and was therefore not taken into consideration when the amendment in question was granted. Mr Gobbo indicated that the letter had been sent by facsimile transmission and by document exchange, but no copy of it appears on the file, except for copies subsequently forwarded by his instructing solicitors.

2. When that adjournment was granted, well before the date fixed for the hearing, it was granted on the basis that it was the responsibility of Mr McMullan, being the solicitor for the parties seeking the adjournment, to advise all other parties of the adjournment and further on the basis that his client may be responsible for costs thrown away in the event of a party attending as a result of a failure to comply with that direction.

3. Mr McMullan had advised other parties in relation to an earlier adjournment of a hearing originally fixed for the 28 July 1999. He had copies of the letters he had forwarded. However, he frankly confessed that he did not have similar copies of similar letters of advice in relation to the second adjournment. On the basis of his examination of the file he concluded that there had been oversight on his part in relation to this aspect. He asked that any order for costs be made against him personally, and not against his client. He suggested, in effect, that the question of costs throw away should be reserved and that he would discuss the question with Mr Gobbo's instructors. That arrangement was accepted by Mr Gobbo.

4. The balance of the hearing was devoted to the question of what further directions should be given.

5. The case should be fixed for hearing before a lawyer experienced in planning matters and Dr Mainwaring. Dr Mainwaring has heard two previous cases in relation to the land. Three (3) days should be allowed for the hearing, but the case should not be set down until certain interlocutory steps have been carried out in accordance with directions given above.

6. Mr McMullan seeks further particulars in relation to the allegations of contravention advanced by the Responsible Authority. He accepts that he should make a detailed and particularised request for such further particulars. He is to make that request in writing within 14 days of the 22 October 1999. A copy of that request is to be filed with the Tribunal and provided to Mr Gobbo's instructors.

7. Further and better particulars in response to that request are to be provided by the Responsible Authority within a further 21 days.

8. Mr McMullan's client proposes to rely on some alleged non-conforming use rights in relation to the land. Directions are given in relation to giving particulars in relation to the claim that such rights exist. However, it was agreed between the parties that Mr McMullan would prepare a statement of the rights alleged, specifying their extent, to be provided to the other parties within 14 days of the 22 October 1999. It may be that the parties can agree as to the extent of existing use rights. That would simplify the anticipated hearing considerably. If full agreement is not reached, the area of disagreement may be isolated.

9. The question of discovery of documents was discussed. It was agreed that the Responsible Authority would make its relevant files available for inspection and that arrangements would be made between the parties for obtaining copies. This course was preferred to the preparation of formal lists of documents and inspection. That procedure may be resorted to if difficulties or disputes as to discovery should arise. Liberty to apply for further directions in this respect, or generally, is reserved.

10. I indicated that I would give an internal direction for this file to be returned to me after six (6) weeks so that an assessment can be made at that stage as to whether the matter is ready to be set down for hearing.