Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 5) [2014] NSWLEC 175

Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 5) [2014] NSWLEC 175

Leave was granted to rely on Mr Roderick's affidavit because the evidence was relevant and significant to the central issue, the explanation for the delay was reasonable, the prejudice was not sufficient to outweigh the reasons to exercise discretion, and acceptance would ensure proper determination under s 78A(8)(b) Environmental Planning and Assessment Act 1979.

Parties
Applicant: Friends of Tumblebee Incorporated; First Respondent: ATB Morton Pty Limited; Second Respondent: Cessnock City Council
Jurisdiction
Australia
Judgment Date
30 October 2014
Procedural Posture
Interlocutory Application / Application for Leave to Rely on Additional Evidence
Outcome
Leave granted to rely upon the affidavit of Mr Michael Roderick affirmed 30 October 2014.
Legal Topics
Leave to Adduce Evidence, Species Impact Statement, Threatened Species, Site Specific Ecological Evidence, Practice and Procedure
Administrative Law Environmental Law Civil Procedure Leave to Adduce Evidence Species Impact Statement Threatened Species Site Specific Ecological Evidence Practice and Procedure

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Parties

Friends of Tumblebee Incorporated

Applicant

ATB Morton Pty Limited

First Respondent

Cessnock City Council

Second Respondent

Procedural Posture

Interlocutory Application / Application for Leave to Rely on Additional Evidence

Legal Issues

  1. 1 Whether leave should be granted to rely upon the affidavit of Mr Michael Roderick affirmed 30 October 2014
  2. 2 Whether the evidence was relevant to the central issue for determination
  3. 3 Whether admission of evidence so late in the proceedings would prejudice the respondent

Ratio Decidendi

Leave was granted to rely on Mr Roderick's affidavit because the evidence was relevant and significant to the central issue, the explanation for the delay was reasonable, the prejudice was not sufficient to outweigh the reasons to exercise discretion, and acceptance would ensure proper determination under s 78A(8)(b) Environmental Planning and Assessment Act 1979.

Court Disposition

Leave granted to rely upon the affidavit of Mr Michael Roderick affirmed 30 October 2014.

Orders

  • Leave granted for applicant to rely on Mr Roderick's affidavit and annexed spreadsheet data.
  • Further directions to be made at subsequent hearing regarding joint conferencing and supplementary evidence strictly confined to commenting upon spreadsheet data.