By Notice of Motion filed 21 May 2020 the Applicant seeks orders that:
1. The proceedings are adjourned and are listed for case management at 4pm on 17 November 2020.
2. If the Applicant is issued with a site compatibility certificate (under clause 25(4) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 before that date, the Applicant is, within seven days, to approach the Registry by Online Court to seek for the matter to be listed for case management before Dickson C.
3. The parties have liberty to restore on three days notice.
For the reasons that follow, I have determined not to make the orders sought by the Applicant.
[2]
Background
The Applicant operates Palm Lake Resort, a seniors housing development, at North Creek Road, Ballina. They wish to expand the resort by constructing an additional 75 serviced self-care dwellings, roads, infrastructure and site works. Ballina Shire Council refused the development application and the Applicant appealed to the Court. The expansion is proposed at 120 North Creek Road, Ballina.
The Applicant's appeal was upheld, and consent was granted to the development application by way of deferred commencement consent. The proposed development would not have been permissible except for the issue of a site compatibility certificate (SCC) that was issued on 12 October 2017 and expired 12 October 2019.
Palm Lake Works Pty Ltd v Ballina Shire Council [2020] NSWLEC 1247 | Case summary | Zoe
The Respondent, dissatisfied with the decision, appealed pursuant to s 56A of the Land and Environment Court Act 1979 (the LEC Act). The Respondent's appeal was successful. In Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Ballina v Palm Lake) Preston CJ made the following orders:
"(1) The appeal is upheld.
(2) The decision and orders of Commissioner Dickson dated 4 October 2019 are set aside.
(3) The proceedings are remitted to Commissioner Dickson to be determined according to these reasons for judgment.
(4) The respondent is to pay the costs of the applicant of the appeal."
In the conclusion of his judgment His Honour stated:
"134. The Council has succeeded in establishing five of its grounds of appeal. The errors, both individually and cumulatively, are material and vitiate the Commissioner's decision. The Commissioner's decision and orders should be set aside and the matter remitted to the Commissioner to be redetermined according to law.
135. Palm Lake submitted that remitter is futile as the site compatibility certificate has expired, so that consent can no longer be granted to the proposed seniors housing development. This might be so, but Palm Lake can apply for another site compatibility certificate. In the meantime, it can seek an adjournment of the remitted proceedings before the Commissioner to await the outcome of its application for another site compatibility certificate."
Remittal of matters is provided for under s 56(2) of the LEC Act.
The Respondent opposes the orders sought in the Notice of Motion.
[3]
The Hearing
The Applicant relied on affidavit and oral evidence. I will refer to the substance of that evidence where it relates to the reasons for my judgment below. In addition, I was assisted by the parties providing comprehensive written and oral submissions.
The Applicant submits that the motion should be granted by the Court on the following grounds:
1. That during the hearing of Ballina v Palm Lake, the Applicant made submissions to the Court to the effect that a remitter was futile in circumstances where the SCC had expired. The Applicant argues their submission on the futility of the remitter was not accepted by the Court. The Applicant relies on His Honour's concluding paragraph (reproduced at paragraph [6]) in support of their request for adjournment.
2. That since the judgment in Ballina v Palm Lake, the Applicant has responded promptly by receiving legal advice, engaging experts commencing the necessary preparation for the lodgement of a SCC application. They intend to lodge the application for a SCC by 10 June 2020.
3. That relying on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [151], there can be no criticism of the Applicant in not applying for a new SCC prior to the finalisation of the appeal.
4. The Applicant proposes to manage the process of the lodgement of the application for a new SCC expeditiously and seek for the Department of Planning, Industry and Environment (the Department) to give the SCC application priority.
5. There is no evidence of prejudice to the Respondent by the proposed adjournment.
6. That it would not be just to force the matter to hearing, and judgment, in circumstances where refusal is inevitable given that a SCC is a precondition to the grant of consent: s 24(2) State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.
7. A proposal to stage the hearing would not be just and cheap but would rather lead to duplication. The Applicant notes that there is a likelihood that a new SCC may include new or updated requirements. Further they argue: "There is a reasonable prospect that those requirements in an SCC will overlap with the matters the Court will be otherwise require to consider in the remitted proceedings." (Applicant's written submissions, 27 May 2020, p 4).
8. The Applicant argues that the remitted proceedings should be conducted concurrently with any consideration by the Court of whether the requirements of the new SCC have been satisfied. They seek for the Court to allow the adjournment to facilitate this approach.
The Applicant foreshadows that it may be necessary to seek leave of the Court to admit additional evidence but does not seek those orders at this time.
The Applicant proposes the matter be adjourned for five months. It arrives at this duration from the likely lodgement date of the application and an assessment of the most recent SCC applications determined by the Department. (Affidavit of Kalinda Doyle, 21 May 2020).
The Respondent accepts that it is a reasonable assumption that an application for a SCC would be determined within a 6 to 8 month time period.
The Respondent opposes the motion. The Respondent argues that whilst the Applicant seeks an adjournment of five months, the actual duration of the adjournment is uncertain. They seek for the Court to dismiss the motion and for the remitted matter to proceed to hearing. The reasoning of the Respondent is as follows:
1. The Applicant failed to take steps to secure a new SCC despite the pending appeal.
2. That the comment of His Honour at [135] of Ballina v Palm Lake should not be overstated.
3. The SCC will be determined by a different statutory body than the previous SCC. Ms Reid argues that this factor, along with the complexity of the site and the ongoing community interest adds to the uncertainty of the timeframe of the adjournment.
4. If issued, the form of any SCC for the site and its requirements are uncertain. The form and requirements of the SCC may impose unknown changes to the built form of the development proposed by the Applicant.
5. That in Ballina v Palm Lake, His Honour upheld five of the grounds of appeal. The Respondent argues:
"7. Save for perhaps the final ground, the decision of Preston CJ highlights that the Court was not apprised of the requisite information to lawfully approve the development application before it.
8. Adjourning the proceedings to permit the applicant to make an application for a site compatibility certificate does not answer the fundamental issues which the Court must determine on the remitter hearing."
(Respondent's written submission, 27 May 2020, 3)
1. That adjourning the proceedings would unnecessarily delay final determination of the proceedings.
2. That the Court should give weight to the principle of finality in determining the motion. Ms Reid argues that many of the issues upheld by the Ballina v Palm Lake decision were matters put by the Council in their Amended Statement of Facts and Contentions. Relying on Perilya Broken Hill Ltd v Valuer-General (No. 8) [2015] NSWLEC 72, [33]-[35], Ms Reid argues it was a decision of the Applicant to not tender evidence to address those matters in the original hearing of the matter and that they should not now be given that opportunity on remitter.
Finally, the Respondent argues that the Council is entitled to have the remitted proceedings determined according to the findings detailed in Ballina v Palm Lake. If the Court holds that there is sufficient information to determine the remitted matter favourably, the Council argues an adjournment to await the outcome of the SCC application could be sought at that point.
[4]
Findings
Section 66 of the Civil Procedure Act 2005 empowers the Court to adjourn proceedings before it or any aspect of such proceedings. Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at [252], per Kirby P held that this is a "wide and ample" power, the principal consideration being what is necessary to do justice between the parties.
Each of the parties to civil proceedings, and their legal representatives, have an obligation to assist the Court in achieving its overriding objective to facilitate the quick, just and cheap resolution of the issues in the proceedings in accordance with s 56 of the Civil Procedure Act 2005. The Court makes directions in order to facilitate this overriding objective. It is clear from the proceeding submissions that the parties have a different view as to how the overriding purpose is best achieved in the current proceedings.
I have determined, having regard to the background to the proceedings which I have briefly outlined, that it is not appropriate to grant the adjournment sought by the Applicant. My reasoning is as follows:
1. In City of Sydney Council v Satara [2007] NSWCA 148 at [31] McColl JA, Tobias JA and Beazley JA agreeing, noted that:
"A case which has been specially fixed for hearing at a date some months in the future should proceed to hearing unless to refuse an adjournment would prejudice a party to the point of denying justice (citations omitted)."
1. In Ballina v Palm Lake, His Honour upheld five of the Respondent's grounds of appeal. I accept the submission of Ms Reid that these represent fundamental issues that are required to be determined by the Court on remitter.
2. I am obliged to deal with the remitted issues and can do so in the first instance separately to the SCC, notwithstanding it is a precondition to consent. Once the matters identified in the remitter are determined, dependant on the decision of the Court, the validity of the SCC becomes relevant before the matter is finally determined. It is in this context I read the concluding paragraphs of the decision of His Honour in Ballina v Palm Lake.
3. I am not persuaded by the Applicant's submissions that to adjourn the proceedings for an uncertain length of time is consistent with the duty of the Court to make directions in order to facilitate the overriding objective of the Civil Procedure Act 2005. Further, the length of the adjournment is by nature uncertain as is the outcome of the deliberations of the Northern Regional Planning Panel on the issue of a SCC: s 24(5) State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. These factors are counter to the exercise of the discretion under s 66 of the Civil Procedure Act 2005.
4. I have considered the Applicant's submission that to adopt the approach outlined at (2) and (3) above will result in duplication. I am not persuaded this is so. The scope of the remitter is defined by Ballina v Palm Lake, namely, to determine the proceedings according to the reasons for judgment given by His Honour.
On balance I am satisfied that the appropriate course of action to facilitate the quick, just and cheap resolution of the issues in the remitted proceedings is for the motion for adjournment to be dismissed.
The orders of the Court are:
1. The Applicant's Notice of Motion filed on 21 May 2020 is dismissed.
2. The matter is listed before the Registrar on 5 June 2020.
[5]
Amendments
25 June 2020 - Category type on Coversheet corrected from "Principal Judgment" to "Procedural and other rulings".
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.
Decision last updated: 25 June 2020