[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
EX TEMPORE Judgment
I have before me an application for expedition for the hearing of a summons seeking leave to appeal, and potentially an appeal, from a decision of the Land and Environment Court handed down two days ago on 25 October 2022. That decision is Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127. That decision of Justice Pepper involved the hearing of two prayers for relief, out of a broader set of prayers for relief, relating to a development consent granted by the second respondent to the third respondent to hold the "2022 Ultra-Trail Australia" event. That event is a running race over various distances, the most gruelling of which is apparently over 100 kilometres in and around Katoomba in the Blue Mountains.
I understand from the judgment and have had confirmed from the bar table that that event commenced today, 27 October 2022, and is listed to continue until Sunday 30 October 2022. I understand it was originally to occur in May 2022 but the event was postponed due to inclement weather.
The case involves legal arguments relating to, in particular, a decision of a local planning panel made on behalf of the Blue Mountains City Council (the second respondent). The prayers for relief that were determined by Justice Pepper also included an application for a declaration that an eco-tourism licence issued by the second respondent to the third respondent was invalid.
Her Honour heard the application on 20 October 2022 and handed down her Honour's decision, as I have noted, on 25 October 2022. It is relevant to note that the development consent was apparently not published on the website of the second respondent until around 6 October 2022. It is also relevant to note that her Honour records at [3] of her judgment that upon publication of the development consent, Seek Justice immediately commenced proceedings. It cannot be said that Seek Justice has delayed in bringing its challenge.
The same may also be noted in relation to the filing of the application for leave to appeal in this Court, given that the decision of Justice Pepper was handed down on 25 October, two days ago, and the relevant documents were filed in this Court, I am informed, late yesterday on 26 October 2022.
Her Honour determined the two prayers for relief before her adversely to the applicant, doing so on two bases. First, in broad summary, her Honour determined that the claims for relief were without legal merit. Secondly, lest her Honour's reasoning was incorrect on the substantive legal issues, her Honour also determined the matter in her discretion, bearing in mind that the relief sought was discretionary. Her Honour did so on grounds relating to the circumstances that the event was about to commence and that there would be significant prejudice and material disadvantage to a wide range of people, including the third respondent.
Any appeal to this Court would, it currently seems to me, need to address both bases of her Honour's decision. To overturn her Honour's second basis for decision, namely the exercise of her discretion, it would be necessary to establish House v The King error. The draft notice of appeal does not identify any allegation of such error in relation to the second basis of her Honour's decision.
In support of its application for expedition, I heard submissions from Mr Ivan Jeray, a director of the applicant. He had also represented the applicant in the proceedings below. In support of the application he noted that serious issues relating to conflict of interest in the Council were alleged. He submitted that important issues of law were involved and that the appeal was seeking to uphold the integrity of planning laws and of the local government scheme. He noted that once the development consent had expired - which I understood him to mean to refer to the event having been completed this coming Sunday - any appeal after that time would arguably be futile. He submitted that it is in the interests of justice that parties can contest development consents. He noted that the applicant had been placed in a difficult position as the development consent had been granted not long before the event had commenced. I accept that there is some force in these submissions.
The position of the third respondent was to neither consent to nor oppose the application for expedition. I note that the first respondent, the Minister for Planning, has filed a submitting appearance in this Court. And I was informed by counsel for the third respondent that his instructing solicitor had been informed by the solicitor for the second respondent that the second respondent intended to file a submitting appearance.
I am determining this application at approximately 3.45pm on the afternoon of Thursday 27 October 2022. There was discussion between the bench, Mr Jeray and counsel for the third respondent as to the practicality of organising for any appeal to be heard, or (if needed) any application for leave to appeal, in the time remaining. There was no real dispute that if the matter was to be expedited, the only useful course from the position of the applicant would be to have the appeal heard tomorrow, Friday 28 October 2022. Mr Jeray indicated that he would wish to have till approximately 10.30am tomorrow in order to file and serve the documents he would wish to have before the Court for the purposes of hearing any appeal. It was noted that brief written submissions had been provided to Justice Pepper in the Court below. He sought to have till 10.30am tomorrow or thereabouts in order to provide further brief submissions for the benefit of this Court.
Counsel for the third respondent indicated that in those circumstances, whilst he had already commenced doing some work in anticipation of the possibility of an appeal being listed expeditiously, he would nevertheless desire to have till approximately 12.30pm in order to be able to consider the material and submissions provided by the applicant and provide any written response. That submission was self-evidently reasonable.
In practice that means that at best any appeal would not commence being heard till 2pm at the earliest. It would then be necessary to hear oral argument and for the Court to consider how to resolve the dispute, bearing in mind that the applicant submits the issues raised are of importance. From my review of the materials, it is possible that the issues raised would have broader significance for the planning scheme than just resolving a dispute between the present parties. That factor means it cannot be assumed the Court would be in a position to determine its orders immediately, even working on the assumption that orders might be made with reasons to be delivered later.
All the while the event is ongoing. Tomorrow will be the second day of the event out of a possible four days. If orders were to be delivered on Saturday morning that would be the third day of four. That fact undermines the argument made by the applicant, which otherwise has some force, that if the appeal is not determined with great urgency then in practical terms it may potentially be rendered futile. Any appeal, to the extent it is delayed, is already futile to the extent of that delay because all the while the event goes on. It remains open to the applicant to seek an interlocutory injunction to prevent that occurring and I can hear any such application immediately.
I have taken account of the interests of justice, in particular as enumerated in ss 56 to 58 of the Civil Procedure Act 2005 (NSW). Taking account of the difficulty of getting an appeal to be heard and determined quickly, and taking account in particular of the fact that the event is currently underway and by the end of tomorrow will be halfway done, I am not persuaded that it is in the interests of justice to grant the very high degree of expedition that is sought by the applicant, and the application for expedition is dismissed.
[Discussion about a possible application for an interlocutory injunction, and costs]
An issue has arisen as to costs in relation to the application for expedition, and also for an application that was foreshadowed for what was called a stay but was really an interlocutory injunction.
In relation to the application for expedition, which I have rejected a short while ago, Mr Stafford appearing for the third respondent fairly notes that the position of the third respondent was neither to consent to nor oppose that application. I also consider it was not unreasonable for the application for expedition to be made. In the circumstances it is in the interests of justice that costs of the application for expedition be costs in the cause.
In relation to the application for a stay or interlocutory injunction, that application has now been withdrawn. It is difficult to see that there would be any additional costs of any significance in relation to that application, taking account of the fact that I understand no affidavit was going to be provided to me in relation to the application for an interlocutory injunction in any event. For those reasons, insofar as there were any costs with respect to that proposed application, those costs, too, can be in the cause.
[3]
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Decision last updated: 28 October 2022