I gave leave to Mr Jeray the Applicant's director to file in Court an amended notice of motion dated 14 July 2023. I should be clear that I am dealing with his application to rely on an amended summons also dated 14 July 2023.
I have made order 1 essentially, with leave granted to file in court and for short service of the amended notice of motion and supporting affidavit dated 13 July 2023.
I am determining the application for the amended summons to be relied on. I note for clarity that the amended summons should be called the second further amended summons dated 14 July 2023 to take into account earlier amendments of the same summons. The amendments are helpfully identified and underlined by Mr Jeray.
I note that there is an application to join the Minister for Environment as the fourth respondent, and that the name of the Minister for Environment should be underlined on the first page. As I understand, that relates to an additional part E that is now sought to be relied on. (I note that Mr Jeray advised that the Minister for Environment joinder is not related to part E.)
It is important to record as background for why I am going to make the decision I am that this matter has already been partly heard. It relates to a four day event held in the Blue Mountains, I believe at the end of last year, in October 2022. In relation to the amended summons dated 7 October 2022, Pepper J has already dealt with two declarations dealing with the event and has given a written judgment in relation to that matter Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127 delivered on 25 October 2022. That effectively dealt with a substantive part of the challenge by the Applicant, Seek Justice Pty Ltd, in relation to the event.
Further declarations were sought and were allowed to be pursued by Moore J, on 2 December 2022. That appears as prayers 10 and 11 in the further amended summons dated 2 December 2022. I note that the hearing of those additional matters was listed before me. I vacated that hearing by consent, which was set down on 19 April 2023. At that stage the only outstanding matters related to declarations 10 and 11.
I turn now to the second further amended summons dated 14 July 2023. I note for the record that the entirety of part B is no longer pressed, and in observing that, I give leave to withdraw prayer 8 in the second further amended summons.
I will now briefly outline the arguments of the parties in relation to part C, noting that the only participating respondent, the Third Respondent USM Events Pty Ltd, opposes any of the amended declarations sought. The declarations now being sought are contained in part C, a new part D, a new part E and a new part F. Part E relates to the Minister for Planning.
The basis for objecting to the new material as argued by Mr Campbell solicitor for the Third Respondent is the history that I have referred to. The event the subject of the challenge is over as of October 2022. The prayers for relief sought in part C would have no operational force if they were to be made. This is prayers 10 to 17 of part C of the second further amended summons given the fact that the actual event is essentially long gone. There is no practical utility in making any of the declarations sought. Dealing further with these declarations is a waste of time.
In relation to part D, Mr Campbell identifies that it introduces a new challenge to a new development consent with a different no. X/2185/2022 which is a further entirely separate event which is planned for possibly later this year. Once again an event that will be of short duration intended to take place over a number of days. He suggests it is not appropriate given the history of this matter, which is in fact part heard in relation to the 2022 event, that a new and entirely separate decision should be added in at this stage.
In relation to part E, which is slightly difficult to understand but appears to relate to a challenge to two different regulations which have been made by the Minister for Planning, which came into effect on 3 April 2023, Mr Campbell helpfully identifies that those changes in the regulation can have no effect on the decision of the Blue Mountains City Council last year to grant development consent for the 2022 development.
A final declaration sought is in relation to the Blue Mountains City Council, I would say in somewhat unfortunate terms, seeking a declaration that Blue Mountains City Council has tampered with records, and interfered with the administration of justice in the way it has conducted itself in the proceedings. I should note, if I have not already, the Blue Mountains City Council (the Second Respondent, referred to as the Blue Mountains Local Planning Panel/Blue Mountains City Council in the second further amended summons) has filed a submitting appearance.
In support of arguing that all these matters should be progressed, Mr Jeray essentially says that they are intertwined issues, it is most efficient and cost effective if the matters are all dealt with together, and he submits that in the interest of accountability, the various declarations sought do have utility. In pursuing these new matters there will be greater transparency in allowing for these matters to be progressed.
Mr Jeray has referred me to a decision of Kirk J, in an interlocutory matter heard on 27 October 2022, Seek Justice v Minister for Planning [2022] NSWCA 220, in particular at [12] where his Honour in an ex tempore judgment identified that the issues before him may have potentially wide interest. Essentially Mr Jeray asserts he is acting in the public interest, that the declarations have utility and they should be allowed, and that applies also to part D which is the challenge to a new development consent no. X/2185/2022. Similar submissions apply in relation to part E the challenge to the two regulations that came into effect in April 2023.
Mr Jeray has also made a number of assertions in relation to the behaviour of the Blue Mountains City Council in relation to the production of documents. In support of the declaration sought in part F dealing with the Blue Mountains City Council he annexed to his affidavit in support of the motion, a letter from Blue Mountains City Council's solicitors Marsdens dated 6 July 2023 which on its face appears to be Blue Mountains City Council complying with orders made by the Court for the provision of documents and does not appear to be a basis for making the assertions he is seeking to make in support of the proposed declaration that is sought in part F.
I now rule. I essentially agree with and adopt the submissions of Mr Campbell in relation to part D and part E. Given the history of this matter, which is essentially part heard, it is not appropriate to add in a completely different challenge to a different development consent, which is the subject of part D of the second further amended summons. It has no bearing whatsoever on the 2022 decision under challenge. I consider the same observation and findings should be made in relation to part E, which is the challenge to the two regulations which came into effect on 3 April 2023. They can also have no bearing on the 2022 decision.
I refer now to part C. For complete clarity, my understanding is that prayer 10, which is currently deleted, is to be replaced by the new words which are underlined on the bottom of page 2 and the top of page 3 on the basis that the struck out words in prayer 10 are replaced by those words. I will allow those replacement words at the bottom of page 2 and the top of page 3.
I otherwise consider that the balance of the declarations sought lack utility in the circumstances of this case. Mr Jeray can make submissions, and the Court can make findings about the matters the subject of these purported declarations, but the substantive declarations sought in what is now prayer 9 and now prayer 10, really means that additional declarations simply are not going to be needed. The Applicant can rely on a new prayer 10. The Applicant may not rely on prayers 11 to 17 in the second further amended summons.
This bring me to part F which seeks a declaration in relation to the Blue Mountains City Council. No basis for making such a declaration has been demonstrated, and I further observe that it is not appropriate in a summons of this kind to be seeking declarations of that nature in terms of Blue Mountains City Council's behaviour in relation to these proceedings. That would have to be dealt with, I think, in an entirely different way. I will not allow part F to be relied on.
[3]
Orders
The Court orders in proceeding 2022/299420-006:
1. The Applicant is granted leave to file in Court and for short service of amended notice of motion dated 14 July 2023 and supporting affidavit dated 13 July 2023.
2. The Applicant is granted leave to file in Court and serve second further amended summons dated 14 July 2023, which is annexed to the Applicant's supporting affidavit dated 13 July 2023, as amended during Court and attached to these orders.
3. Costs in the cause.
[4]
ANNEXURE A
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Decision last updated: 19 July 2024