Santo v Anglas Pty Ltd [2010] NSWLEC 126

Santo v Anglas Pty Ltd [2010] NSWLEC 126

The Court granted the second vacation because the outdoor noise level evidence was central to determining the alleged breach of development consent conditions, the further acoustic evidence could not be finalised in time due to circumstances not caused by any party, and there was no utility in commencing the hearing without that evidence; in those rare and unusual circumstances, vacation was consistent with the overriding purpose despite inconvenience to the Court.

Jurisdiction
Australia
Judgment Date
16 July 2010
Procedural Posture
Notice of Motion in Proceedings Seeking Orders Under S 123 of the Environmental Planning and Assessment Act 1979 to Restrain Use of Land as a Child Care Centre / Ex Tempore Judgment on Consent Application to Vacate the Hearing Date for a Second Time
Outcome
Application granted; the hearing date of 20 July 2010 was vacated and further procedural orders were made.
Legal Topics
['vacation of Hearing Date' 'acoustic Evidence' 'development Consent Conditions' 'overriding Purpose' 'mediation and Expert Evidence Directions']
['practice and Procedure' 'environmental Planning and Assessment' 'land and Environment Court Proceedings'] ['vacation of Hearing Date' 'acoustic Evidence' 'development Consent Conditions' 'overriding Purpose' 'mediation and Expert Evidence Directions']

Case Brief

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Procedural Posture

Notice of Motion in Proceedings Seeking Orders Under S 123 of the Environmental Planning and Assessment Act 1979 to Restrain Use of Land as a Child Care Centre / Ex Tempore Judgment on Consent Application to Vacate the Hearing Date for a Second Time

Legal Issues

  1. 1 ['Whether the hearing date of 20 July 2010 should be vacated for a second time because further acoustic evidence could not be finalised due to inclement weather.' 'Whether the acoustic evidence was so central to the alleged breach of development consent conditions that there was no utility in commencing the hearing without it.']

Ratio Decidendi

The Court granted the second vacation because the outdoor noise level evidence was central to determining the alleged breach of development consent conditions, the further acoustic evidence could not be finalised in time due to circumstances not caused by any party, and there was no utility in commencing the hearing without that evidence; in those rare and unusual circumstances, vacation was consistent with the overriding purpose despite inconvenience to the Court.

Court Disposition

Application granted; the hearing date of 20 July 2010 was vacated and further procedural orders were made.

Orders

  • ['The hearing date of 20 July 2010 is vacated with no order as to costs.' 'The parties are to file and serve any additional lay evidence, if any, by 4pm on 23 July 2010.' "The parties' acoustic consultants are to file and serve any expert evidence by 4pm on 30 July 2010." 'The parties are to mediate the proceedings,...