Mahogany Ridge Developments Pty Limited v Port Stephens Council & Anor

KEY ISSUES: Development Application :- Unreasonable delay by applicant - application by Council to dismiss proceedings due to delay - proceedings adjourned on conditions

LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 12 r 2

CASES CITED: Marinkovic v Rockdale City Council (2006) NSWLEC 601

APPLICANT Mr S Brockwell SOLICITORS Norman Waterhouse

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr J Maston SOLICITORS Sparke Helmore

SECOND RESPONDENT Mr P Marinkowitz (solicitor) SOLICITORS Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MAHOGANY RIDGE DEVELOPMENTS PTY LIMITED Applicant

PORT STEPHENS COUNCIL First Respondent

THE COMMONWEALTH OF AUSTRALIA Second Respondent

JUDGMENT Jagot J: Introduction 1 These are two notices of motion. The first is by the Council dated 18 August 2006 seeking an order that the Class 1 appeal be dismissed, an order for costs of the motion and of the proceedings, and such other order as the Court thinks fit. The second is by the applicant dated 8 August 2006 seeking an order that the proceedings be adjourned for further callover on 28 February 2007, to enable the applicant to undertake additional fauna surveys as requested by the ecological experts in the proceedings, Dr Andrew Smith and Mr Phil Conacher, in their joint report dated 7 July 2006.

2 The Council's notice of motion relies on Pt 12 r 2 of the Land and Environment Court Rules 1996, namely: (1) If an applicant does not within a reasonable time take any step necessary to bring any proceedings to a hearing, or unreasonably takes any step to avoid the proceedings being brought to a hearing, the Court may, on the application of the respondent, order on terms that the proceedings be dismissed or make such other order as the Court thinks fit.

(2) The Court may at any time prior to the hearing, if satisfied that there is no good reason for the failure of the applicant to prosecute the proceedings, dismiss those proceedings.

3 Mr Maston, appearing for the Council, has provided me with a table which sets out the very unhappy history of this development application - involving 11 mentions, 13 e-court communications, 12 adjournments, and 15 callovers before the Registrar. In all, the matter has been before the Court one way or another on 40 occasions, has been languishing in the Court system for 879 days and yet remains in a position where, as recently as July 2006, experts retained by the parties met and agreed that certain fundamental information had to be prepared in order to place the consent authority in a position to be able to adequately assess the development - a position which one would hope is a nadir in proceedings such as these.

4 Mr Maston also provided me with a summary of the changes to the original development application. The summary discloses that the application is for a very substantial tourist development on a large area of land. The application was amended prior to the commencement of the proceedings in mid 2001, and was again amended pursuant to leave granted by the Court on 22 December 2005 (but remains substantial).

5 I do not propose to repeat the sorry chronology of events that has led the parties to this pass other than to say I accept Mr Maston's characterisation of the proceedings as falling within three periods. Period one - from May 2004 to about June 2005 - involved the lodgement of the appeal, the vacation of hearing dates, case management and other matters somewhat complicated by a writ of possession against the owner of the land by the mortgagee. Period two - from June to December 2005 - involved the amendment of the development application culminating in the grant of leave to rely on amended plans on 22 December 2005. Period three - from March 2006 to date - commenced with directions I made by consent at a case management conference in March 2006. These directions included a requirement that the ecological experts confer. They did so. This led to their joint statement of July 2006 - in which they agreed that significant further work needed to be carried out in order to enable appropriate assessment of the application and whether a species impact was required, including surveys that can only be carried out in summer months.

6 This background has prompted the Council to make its application for dismissal, and the applicant to make its application for a lengthy adjournment of the proceedings, to enable the additional information to be gathered.

7 I also accept Mr Brockwell's characterisation (on behalf of the applicant) that, if the proceedings are not dismissed, we are now entering a fourth phase of these proceedings - arising from the filing and service of the joint statement of 6 July 2006.

8 I do not think that it can be gainsaid that these proceedings have a most unhappy history. However, I have to put that history in context. This is not a straightforward development application. It is a very large proposed development (which Mr Maston has helpfully described in his document) involving amongst other things a resort hotel, resort apartments, boutique hotel, arts and crafts village, over 1500 car parking spaces, 300 staff and other ancillary aspects. That context has to be considered when determining whether the Council's application to dismiss the proceedings.

9 I agree with Mr Brockwell's submission that in Class 1 of the Court's jurisdiction, the power under Pt 12 r 2 should be exercised sparingly.

10 I do not consider that, in all of the circumstances, it would be an appropriate exercise of my discretion at this stage in the proceedings to dismiss the proceedings or otherwise shut the applicant out - in effect by forcing the applicant to proceed forthwith to hearing with the development application in its current form.

11 That conclusion does not and is not intended in any way to condone what seems to have occurred, namely, a fairly important (and late) shift in position with respect to the applicant's ecological advice. Although there are references in the applicant's affidavits to that resulting from changes in the legislation, it seems to me by looking at the joint statement that at least some of the matters referred to therein do not immediately present themselves as falling within that description.

12 Be that as it may, I do not think this is a matter where I should exercise the power to strike out the proceedings. The question is what then should be done? The Council sought (in the alternative) a general costs order in the nature of the order made by Preston J in Marinkovic v Rockdale City Council (2006) NSWLEC 601. In Marinkovic the applicant had pinned its colours to the mast - it had been granted leave to amend its development application and proceed to hearing on a final set of amended plans. In the particular circumstances of that matter, Preston J was satisfied that all costs incurred up that up point were effectively thrown away - because the applicant had only then worked out the development it wished to carry out. As such, his Honour concluded that the applicant had caused the Council to incur wholly unreasonable costs, for which the Council ought to be compensated. The proposed development in Marinkovic was a residential flat building and could not in any way be seen as a development of the same character and apparent complexity of the development the subject of these proceedings.

13 The most I can say about any such general costs order is that it seems to me that the application is premature - because I do not know the end position in relation to the provision of this further information, and the applicant has not yet pinned its colours to the mast. Accordingly, this issue should be reserved for a future date.

14 The consequence is that I should grant an adjournment as sought in the applicant's notice of motion. However, I am not willing to do so unconditionally given the matters described above. A more appropriate course would be to take steps to ensure that the parties confront any issue about the ecological survey design before the surveys are actually carried out. I also consider that directions should be made to ensure that this matter continues to be case managed by a judge of the Court. It is essential that, in circumstances where I am giving the applicant a significant indulgence, no part of that indulgence should be wasted, and the Council should not be exposed to any unreasonable or unnecessary costs (recognising that I am also going to reserve the general costs order issue for a future date).

15 Therefore, I make the following directions: (1) The first respondent's notice of motion dated 18 August 2006 is dismissed.

(2) Each party is to pay its own costs of the first respondent's notice of motion.

(3) Subject to compliance with the further orders below, the proceedings are adjourned for mention before a Judge (Jagot J if available) at 9.15am on 28 February 2007.

(4) The applicant is to serve on the first respondent, full details of the proposed design and methodology of all of the surveys, further work required with respect to the Port Stephens Council Comprehensive Koala Plan of Management 2002 and the applicable requirements of the Native Vegetation Act 2003, by 31 October 2006.

(5) The Council, via its consultant Dr Smith or such other expert as the Council sees fit, is to serve on the applicant its response to the information submitted by the applicant in order 4 above, including full details of any inadequacy in that information or the proposals contained therein to yield data to satisfy the requirements of the joint statement between Dr Smith and Mr Conacher dated 6 July 2006, by 10 November 2006.

(6) If the first respondent notifies the applicant of any inadequacy in accordance with order 5 above, the applicant is to either rectify the inadequacy or inform the first respondent that it does not propose to do so by 17 November 2006 and, if the inadequacy is rectified, the information in that regard is also to be served on the Council by 17 November 2006.

(7) The applicant is to serve on the first respondent and second respondent, the results of the survey and other work in accordance with the orders above, reasonably promptly after that information becomes available and, if possible, prior to 28 February 2007.

(8) These orders are not to be varied by e-callover, even if by consent between the parties. If any of the parties wish to vary these orders, they have liberty to restore before a Judge on 3 days' notice.

(9) The question of any costs and expenses incurred by the Council from 3 October 2006 onwards in respect of the applicant being granted the adjournment to 28 February 2007 is reserved, subject to order 10.

(10) The applicant is to reimburse the first respondent with respect to: (a) the full cost of the first respondent's consultant complying with these orders; and

(b) the reasonable costs and expenses of the first respondent in facilitating that compliance. (11) Each party is to pay its own costs of their preparation for, and attendance on, the applicant's notice of motion dated 8 August 2006, except that the applicant is to pay the first respondent's costs of the affidavit of Dr Smith sworn 21 August 2006 as agreed or as assessed.

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.