Land & Environment Court Proceedings
Wednesday, September 2, 2020
Commissioner Dickson of the Land & Environment Court conducted a site inspection of 303 Blackhead Rd as a preliminary to the formal Court Proceedings. In attendance are representatives of the Developers, the MCC Legal Team, and MCC planning staff. The site inspection was necessary as Commissioner Walsh, who heard last year's conciliation action, was unavailable for this hearing. With a new Commissioner taking the chair, the Community was faced with the reality that all of the evidence presented at the last site hearing became null and void in front of this Court. The submissions that members of the Community had contributed did, however, stand as Court Evidence. Therefore the Community Representatives re-submitted the evidence that was presented by our speakers in 2019, with the assertion that "we stood by our evidence of last year".
Thursday, September 3, 2020
The formal L&E Court Hearing commenced at 10am in Sydney, with preliminary "house-keeping" matters dealt with quickly. The speakers against the proposal were then invited to present their evidence. Speaking against the development were Alan Tickle, representing CLAPA, Colin Benvenuto, representing his parents who own the next block of land along Blackhead Rd (closer to the beach), and 3 speakers from the 303 Blackhead Action Group: Les Bourke, Sandii Chan & John Crampton. After Alan spoke, the developer's barrister launched the first of his very aggressive attacks, challenging several aspects of the evidence that had been presented. His approach was to seek to trivialise or dismiss the nature of each speaker's claims. In doing so he revealed the weakness of their position - that of merely saying "that is not an issue", or "we have a plan for that". He attempted to complicate these issues and to confuse or belittle the speakers. In our eyes, he did little to counter the concerns that we were expressing. All of the presentations raised issues with the last set of amendments to the proposal that the developers had placed in front of the L&E Court. You can read the presentations made by Les, Sandii and John by going here. The questioning of your community's speakers by the barrister for the developers was robust, but it would appear that our answers and stances did not provide him with the opportunities that he was looking for to register a blow for their side. This was predictable as in the eyes of the community, their argument is fundamentally flawed.
The afternoon Hearings moved into the presentations by the developers, who seemed strangely unprepared and disorganised given the time they had available to plan for this Hearing.
Friday, September 4, 2020
The presentations by experts continued into the Friday of the Hearings. The proceedings were likened by those attending online to watching paint dry. It appeared that the developer's team were so moved to attempt to change any aspects of their proposal that had been criticised. The day finished well behind schedule with the Commissioner reminding parties that the allocated time for the Hearing was to conclude on Monday afternoon. After that time the parties were to prepare written submissions as their summaries of position. It was the Court's intent to then adjourn in order to consider all of the evidence presented and the associated arguments.
Monday, September 7, 2020
The day picked up from where it left off on Friday afternoon, with the snails pace of activity slowing even further. The Court reminded parties of the afternoon deadline, but to no avail in apparent effort to get through the presentation agenda and associated discussions. The Commissioner closed proceedings for the day with an adjournment until the 12th and 13th of October. The Court indicated that after providing that additional time for the arguments to be presented that the Commissioner would then adjourn to consider the issues and make a ruling, but that ruling would most likely be not until a number of months into the New Year.
Our advice in relation to the Community's contribution and position is:
The evidence given by the residents was well received and very good. There is really nothing further that can be done by the community. Once the hearing is complete we just have to await the decision of the Commissioner.
The potential outcomes are the refusal of the DA or the granting of Consent subject to conditions. If Consent is granted there is no right of appeal on the merits. The only possible appeal would be if the Commissioner committed an error of law. If that occurred, there may be an appeal to a Judge of the L & E Court, but only on the legal issue. We would need to assess this potential if a Consent was granted.
MCC's Legal Team provided the following comments and explanations at the conclusion of Monday's proceedings:
Thank you for the time you took in giving your evidence to the Court last Thursday morning. I think it was well received by the Court and you all did a great job in presenting your concerns.
If you continued to watch the proceedings you would be aware that the evidence has not yet been completed due to a variety of factors, including that the Applicant has endeavoured on a number of occasions to provide further information and to vary the plans to address concerns that had been raised in the evidence.
Whilst the evidence of the arborists and ecologists (and some of the planning evidence) has been completed, the urban design and planning evidence is yet to complete. Therefore, the Commissioner has listed the hearing to continue on 12 and 13 October 2020 by MS teams. If you want to view the remainder of the hearing you should be able to contact the Court so as to be sent the link to log on as you did before.
On 12 October 2020 the planning and urban design evidence will continue and the hearing may continue into 13 October 2020 if required. At the conclusion of the hearing the Commissioner will then reserve her decision and given the range of issues, I would anticipate that it may take a couple of months before she hands down Judgment.
October 12 - 13, 2020
Hopefully we see the beginning of the end of this unwanted and poorly thought out project.