Anglican Retirement Villages, Diocese of Sydney v Wollongong City Council (No 2)
[2013] NSWLEC 50
•12 April 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Anglican Retirement Villages, Diocese of Sydney v Wollongong City Council (No 2) [2013] NSWLEC 50 Hearing dates: 12 April 2013 Decision date: 12 April 2013 Jurisdiction: Class 1 Before: Craig J Decision: 1. The second respondent's amended notice of motion filed on 4 April 2013 is dismissed.
2. No order as to costs.
Catchwords: PRACTICE AND PROCEDURE - motion for summary dismissal of appeal from refusal of a development application - development application not accompanied by report required by a condition of a concept plan approval - disputed facts as to compliance with concept plan condition - concept plan condition not determine validity of subsequent development application - relevance of compliance when appeal determined on its merits - scope for operation of Uniform Civil Procedure Rules 2005 when applied to summary dismissal of a Class 1 application Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Threatened Species Conservation Act 1995
Uniform Civil Procedure Rules 2005Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44
General Steel Industries Inc v Commissioner for Railways (NSW) 1964 HCA 69; 112 CLR 125
Logwon Pty Ltd v Warringah Shire Council (1993) 82 LGERA 158
Nikolaidis v Pittwater Council [2009] NSWLEC 227; 171 LGERA 104
Rogers v R [1994] HCA 42; 181 CLR 251
Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55
Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245Category: Procedural and other rulings Parties: Anglican Retirement Villages, Diocese of Sydney (Applicant)
Wollongong City Council (First Respondent)
Roy 'Dootch' Kennedy on behalf of the Sandon point Aboriginal Tent Embassy (Second Respondent)Representation: J E Robson SC (Applicant)
J Riley (solicitor) (First Respondent)
A Oshlack (agent) (Second Respondent)
Norton Rose Australia (Applicant)
Wollongong City Council Legal (First Respondent)
Indigenous Justice Advocacy Network (Agent) (Second Respondent)
File Number(s): 10982 of 2012
Judgment
Roy 'Dootch' Kennedy, the second respondent, applied by notice of motion for an order summarily dismissing these Class 1 proceedings. Mr Kennedy's motion was heard by me last Friday, 12 April 2013. The hearing concluded on that day. However, as the hearing extended beyond the Court's usual sitting time, I announced at the conclusion of the day that I proposed to dismiss the motion but would deliver my reasons for so doing today (19 April 2013). These then are those reasons.
Background
Anglican Retirement Villages (ARV) owns or has control over land comprising Lots 1 and 2 in Deposited Plan 22431 and known as 2 Sturdee Avenue, Bulli (the ARV Land). That land is contiguous with a larger parcel of land owned or controlled by Stockland Developments Pty Ltd (Stockland). Both the ARV Land and the Stockland land are located in an area known as Sandon Point.
On 21 December 2006, the Minister granted concept plan approval to Stockland and ARV for development of their respective land holdings at Sandon Point (the Concept Plan Approval). This approval was granted under s 75O(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). Section 75O is in Pt 3A of the EPA Act which, since the grant of approval, has been repealed. Nonetheless, the provisions of that Part remain relevant for present purposes, having regard to the provisions of Sch 6A to the EPA Act. That Schedule contains transitional provisions consequent upon the repeal of Pt 3A.
Relevantly, the Concept Plan Approval, as it related to the ARV Land, was for development described in Condition A2(2) of Sch 1 to that approval as follows:
"(2) On ARV Lands,
(a) a residential aged care facility of up to 4 storeys containing up to 120 beds;
(b) a mix of apartment buildings of up to 3 storeys containing up to 250 independent living units;
(c) community facilities and services to support residents of the retirement village;
(d) access and car parking;
(e) landscaping including rehabilitation of riparian corridors and forest; and
(f) stormwater management and utility services."
The Concept Plan Approval required that either a project approval under Pt 3A (s 75J) or development consent under Pt 4 (s 80) of the EPA Act would be required before development pursuant to the Concept Plan Approval was undertaken (cf 75P of the EPA Act).
The terms on which the Concept Plan Approval was given by the Minister provided that the necessary approval for implementation of the concept plan could be achieved in one of two ways. Where an application was made for development having "a capital investment value" of $5M or more, project approval under Pt 3A was required. If development with a "capital investment value" of less than $5M was proposed, an application for development consent under Pt 4 of the EPA Act was required and the council for the area was the consent authority for that development; paragraphs (b)(i) and (ii) of the Minister's determination.
On 10 November 2011, ARV lodged a development application with Wollongong City Council (the Council) seeking consent to carry out development on the ARV land. The development was described in the application as "preliminary sub-surface contamination and archaeological investigation" (the 2011 development application). The value of the development so described was stated as being $30,000.
A portion of the ARV Land had, in the past, been used for industrial purposes. One of the two purposes of the 2011 development application was to establish the extent to which, if at all, the site was contaminated as a consequence of its former industrial use. To this end, the application proposed the drilling of a number of bore holes on a grid pattern over the Land so as to assess potential contamination both in the soil and in the groundwater. The area proposed for bore hole drilling excluded an area of the Land located left of centre of the site which was said to be vegetated by a Turpentine forest, regarded as being not only of ecological significance but also having potential Aboriginal heritage significance.
A report accompanying the 2011 development application was provided by a firm named "Mary Dallas Consulting Archaeologists", that report being described in the statement of environmental effects as an "Aboriginal and European Archaeological Investigations Management Strategy". The purpose of the Strategy is said to be to assess material excavated during auger drilling on the site "and to ensure that activities are not inconsistent with the requirements of the Concept Plan Approval and Statement of Commitments." Thus, the reference to the development proposed in the development application as including "archaeological investigation".
The development application was refused by the Council on 24 April 2012. An appeal founded upon that refusal was filed with this Court on 21 September 2012 pursuant to s 97 of the EPA Act. The only and proper respondent joined in that appeal at that time was the Council.
As was required of it by the Court's Practice Note, the Council filed a statement of facts pertaining to ARV's development application and in which it also identified the contentions then proposed to be relied upon by it to support refusal of that application. A document by way of response to the Council's statement of facts and contentions was filed by ARV on 19 November 2012.
On 20 November 2012, a conciliation conference was held before a Commissioner of the Court pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act). That conference was adjourned by the Commissioner to enable further information to be provided by ARV to the Council. The resumption of that conference was later fixed for 7 February 2013.
In the meantime, Mr Kennedy had applied pursuant to s 39A of the Court Act, to be joined as a second respondent in the proceedings. His application was successful when an order for joinder was made by Pain J on 29 January 2013. As a consequence of that order, Mr Kennedy, by his agent Mr Al Oshlack, attended the resumed s 34 conference on 7 February.
That conference was terminated as agreement was not then reached among all parties as to the manner in which the appeal should be resolved: s 34(4). The report prepared pursuant to s 34(4)(a) of the Court Act by the Commissioner who conducted the conference, records that the Council no longer pressed the contentions raised by it in opposing the grant of development consent but that contentions raised by Mr Kennedy were pressed. The contentions so raised substantially reflected those that had been stated by the Council.
An amended statement of facts and contentions was filed by Mr Kennedy on 14 February and responded to by ARV on 20 February. That response puts in issue those contentions advanced by Mr Kennedy in opposition to the grant of development consent. He added additional contentions to those initially framed by the Council.
On 14 February, the Registrar fixed the proceedings for a four day hearing commencing on 2 April. Those hearing dates were subsequently vacated by the Registrar on the application of ARV. It would seem that the application so to do was founded upon the need for further expert evidence to address the amended contentions raised by Mr Kennedy coupled with an intimation given to the solicitors acting for ARV by Mr Oshlack that he would challenge the qualifications of an Aboriginal heritage expert proposed to be relied upon by ARV.
The appeal is now fixed for hearing for four days commencing on 28 May next. Directions have been made for the filing of expert evidence and for the experts retained by the parties to prepare a joint report or reports. The date by which expert evidence is to be filed is 15 May and the date by which any joint report or reports is or are to be filed and served is 22 May.
Mr Kennedy's notice of motion
In his amended notice of motion dated 4 April 2013, Mr Kennedy identifies the power that he seeks to invoke in order to have the present Class 1 application summarily dismissed. Reference is made both to the Uniform Civil Procedure Rules 2005 (UCPR) and the Court Act. By reference to the UCPR he identifies -
(i) Part 13 r 13.4(1)(b) or (c); and
(ii) Part 14.28(1)(a) and (b) or (c)
as founding his application. In the alternative, he relies upon subsections (1) and (2) of s 31 of the Court Act. I will refer to those provisions shortly.
Before turning to the substance of Mr Kennedy's application, it is necessary to address the sources of power that he invokes to sustain summary dismissal of the proceedings. Part 14, r 14.28 of the UCPR does not identify a source of power relevant to the present proceedings. None of the rules contained in Pt 14 of the UCPR have application to proceedings brought in Class 1 of this Court's jurisdiction. That Part applies only to proceedings commenced by statement of claim or in which a statement of claim has been filed: r 14.1.
The provisions of s 31 of the Court Act would also seem to be an inappropriate source of power to found the order that Mr Kennedy seeks. That section relevantly provides:
"31 Irregularity of proceedings
(1) This section applies if the Court determines, on application by a party or of its own motion, that any proceedings before it are not being dealt with in the manner appropriate to the class of jurisdiction to which they belong.
(2) In the circumstances referred to in subsection (1), the Court may make either of the following orders on such terms as may be necessary:
(a) an order that the proceedings be dismissed,
(b) an order that the proceedings be dealt with in the appropriate manner.
(3) If the Court makes an order referred to in subsection (2)(b):
(a) the proceedings are taken to have been duly commenced, and
(b) any step that has been taken in the proceedings is deemed to have been duly taken.
(4) The Court may make such orders as it thinks fit for the future conduct of the proceedings."
The section is framed to address a circumstance where the true nature of the proceedings is inappropriate to the class of the Court's jurisdiction invoked by the initiating process or by reason of the manner in which the issues raised evolve. Proceedings commenced in Class 1 of the Court's jurisdiction but which, in substance, involve judicial review of the decision of a statutory decision maker appropriate to be dealt with in Class 4, provides an example of a circumstance that might engage the provisions of s 31. Those provisions are not engaged when, as here, the challenge made in the proceedings is as to the jurisdiction of the Court to entertain the proceedings in any class of jurisdiction identified in the Court Act or where it is asserted that the proceedings are an abuse of the Court's process.
Rule 13.4 of the UCPR has potential to provide a basis for Mr Kennedy's challenge. Relevantly, that rule provides:
"13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim."
Mr Kennedy founds his entitlement to the order sought upon paragraph (b) or (c) of subrule (1).
In the present case, I do not see any basis upon which to found the power upon (b) of r 13.4(1). ARV has exercised a statutory right of appeal pursuant to s 97(1) of the EPA Act. As my earlier recitation of the background facts indicates, ARV had lodged a development application with the Council and that development application had been refused. On its face, therefore, the factual basis necessary to engage the provisions of s 97(1) were present. Although it is unnecessary to determine whether paragraph (b) of r 13.4(1) can ever have work to do when a statutory right of appeal is regularly exercised, the exercise of the right in the present case does demonstrate a reasonable "cause of action", assuming that such phrase is apt to be applied to that right.
There can be no doubt that the Court does have power to dismiss proceedings if those proceedings are an abuse of its process. Such a right not only arises from r 13.4(1)(c) of the UCPR but also from the implied right of the Court, as a court constituted under the Court Act, to regulate and control its own processes (Logwon Pty Ltd v Warringah Shire Council (1993) 82 LGERA 158 per Kirby P at 160-161).
The principles that pertain when proceedings of the present kind are sought to be dismissed as an abuse of process were discussed by Preston CJ in Nikolaidis v Pittwater Council [2009] NSWLEC 227; 171 LGERA 104. There his Honour referred to the decision of the High Court in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 where at [15] Gleeson CJ, Gummow, Hayne and Crennan JJ cited, with approval, the observation of McHugh J in Rogers v R [1994] HCA 42; 181 CLR 251 at 286. In the latter case his Honour said:
"Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute."
It is necessary to consider whether any of those categories of abuse are made good by Mr Kennedy.
The factual foundation for the application
The basis of Mr Kennedy's application for summary dismissal of the proceedings is that the 2011 development application lodged by ARV does not comply with the conditions upon which the Concept Plan Approval was granted by the Minister on 21 December 2006. The obligation to comply is said to arise from paragraph (c) of the Minister's determination which was:
"(c) That a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the Concept Plan, under section 75P(2)(a) of the Act."
The grant of Project Approval was expressed to be "for the project as described in Schedule 1, subject to the modifications set out in Schedule 2." Condition A3, found in Sch 1, identified plans and documentation that were "approved as part of the Concept Plan". Among the documents so identified is Volume 3 of the Environmental Assessment prepared in respect of the ARV Land by consultants retained by ARV. Condition A3 also provided that in the event of inconsistency between "the approved documentation" and modifications identified in Sch 2 to the approval, the modifications would prevail.
Volume 3 of the Environmental Assessment identified in Condition A3 contained a Statement of Commitments (cf s 75F(6) of the EPA Act). That Statement on behalf of ARV included under the heading "[c]ultural heritage" the following commitment:
"(12) Consultation with appropriate Aboriginal community members to determine the location and significance of the 'Women's Area' which may be located over the subject site and will be undertaken as identified in the Aboriginal Archaeological Report prepared by Mary Dallas (at Appendix H). This consultation is to take place prior to sub-surface archaeological investigations which may be commissioned with respect to proposed future development. This will determine the appropriateness and possible extent of these works."
Schedule 2 to the Concept Plan Approval included modifications to the Statement of Commitments to which I have referred. Condition B1 in Sch 2 provided:
"B1 Aboriginal cultural heritage
(1) The ARV Statement of Commitments concerning cultural heritage are to be modified to include measures outlined below.
(2) The Proponent shall:
(a) include an appropriately qualified and practising anthropologist as part of any investigations into the potential Aboriginal cultural heritage values of a 'Womens Area', and
(b) submit the report by the appropriately qualified and practising anthropologist as part of any future application proposing to develop the ARV Lands."
Mr Kennedy contends that the 2011 development application is not accompanied by a report prepared by an "appropriately qualified and practising anthropologist" who has assessed the potential Aboriginal cultural values of a "Women's Area". As a consequence, so it is submitted, the absence of such a report renders the 2011 development application an invalid development application with the consequence that the Court has no power to determine it. Expressed differently, Mr Kennedy contends that the absence of such a report is jurisdictional with the consequence that ARV's application to the Court must be dismissed. He relies upon the decision of the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55.
For its part, ARV denies Mr Kennedy's contention on two broad bases. First, it contests the factual premise of the contention by denying that it has failed to provide a report which meets the requirement of the Condition. Secondly, it submits that even if such a report did not accompany the development application, its absence does not invalidate that application and deny the Court the power to determine it.
The statement of facts and contentions filed by each of Mr Kennedy and ARV clearly identify joinder of issue upon the factual premise. In his statement, Mr Kennedy seeks to assert that a report relied upon by ARV as meeting the conditions of the Concept Plan Approval fails to do so. His statement asserts that the author of the report is not a qualified and practising anthropologist and he further identifies a number of shortcomings in that report which would disqualify it as meeting the requirements of the Condition. For its part, ARV has responded in its statement, not only by denying the assertions made in Mr Kennedy's statement, but giving particulars as to why it maintained that the report did sufficiently meet the requirements of the relevant conditions of the Concept Plan Approval.
The detail identified in the competing statements identifies the fact that there is a genuinely contested issue to be determined in the proceedings. The circumstance that the contested factual issue exists is relevant to the determination as to whether proceedings ought summarily be dismissed (General Steel Industries Inc v Commissioner for Railways (NSW) 1964 HCA 69; 112 CLR 125 at 129; Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118).
The competing contentions
In support of the factual premise for his submission, Mr Oshlack, on behalf of Mr Kennedy, relies upon an email provided to a representative of ARV in November 2012 from the author of the report upon which ARV relies. In that email she states that she is an historian and cultural heritage specialist but not an anthropologist. She gives the names of two anthropologists who might be consulted if an anthropological report is required. The report relied upon by ARV is one prepared in 2006 and 2007 and commissioned by the New South Wales Department of Environment and Conservation.
The second material fact upon which Mr Kennedy relies to sustain his application arises from a project application submitted to the Director-General of the Department of Planning for development of the ARV Land. That application had been withdrawn prior to lodgement of the 2011 development application. As part of the project application, it is said that ARV submitted the report relied on for the purpose of the present application as satisfying Condition B1(2) of the Concept Plan Approval. It is further claimed by Mr Oshlack that when the Director-General issued his requirements for environmental assessment of that application, he repeated the requirement expressed in Condition B1(2) of the Concept Plan Approval. Thus, so it is argued, an inference should be drawn that the Director-General did not accept ARV's contention as to the sufficiency of the report upon which it relied.
As the project application has been withdrawn, I do not consider the Director-General's action in respect of that application is relevant to the determination of Mr Kennedy's present motion. No inference of the kind asserted on behalf of Mr Kennedy could, in my opinion, be drawn. Even if it was, the Director-General's inferred opinion of the report would not determine the decision that this Court would be required to make when considering the issue that has been raised.
Mr Kennedy also relies upon the fact that ARV sought, and the Court granted, leave to adduce new anthropological evidence in support of the development application. This circumstance, so it is submitted, makes apparent that no report meeting the requirements of Condition B1(2) of the Concept Plan Approval was lodged with the development application, with the consequence that Mr Kennedy must succeed in his present application.
Mr Oshlack tendered an affidavit sworn by the solicitor having the carriage of this matter on behalf of ARV and filed in support of the latter's application to vacate the hearing originally fixed for the hearing of these proceedings. It will be remembered that the Registrar acceded to that application. The affidavit makes clear that ARV maintains its position that the report upon which it relies was a report that conformed to requirement of Condition B1(2) but to avoid debate as to its provenance and particularly as to the qualification of the author, the necessity to adduce new anthropological evidence was considered expedient so as to permit the efficient and timely disposal of the appeal.
Having regard to that evidence, I do not consider that there has been any concession on the part of ARV that the factual premise for Mr Kennedy's application is so clearly established that summary dismissal of the proceedings would be appropriate.
However, even if the factual premise upon which Mr Kennedy relies is established, he must demonstrate that the failure to meet the requirements of the conditions of the Concept Plan Approval to which I have referred clearly results in the 2011 development application being invalid. According to the submission of Mr Oshlack, such a result is the proper consequence of the decision in Timbarra.
Mr Kennedy's reliance upon the decision in Timbarra is misplaced. The proceedings there being considered sought judicial review of a development consent granted for the extension of a gold mine. The respondent council had determined that a species impact statement under the provisions of the Threatened Species Conservation Act 1995 was not required because it was of the opinion that there was no significant affect on threatened species occasioned by the proposed mine extension. The trial judge determined that, on the material before the council, it was reasonably open for it to conclude that no such statement was required, with the consequence that the Court did not determine that question for itself in judicial review proceedings. The correctness of that determination was the central issue in the subsequent appeal to the Court of Appeal.
Spigelman CJ (Mason P and Meagher JA agreeing) determined that in the judicial review proceedings before the court, the determination as to whether the development in contemplation required a species impact statement because the development for which consent had been granted was likely to have a significant affect on threatened species, thereby requiring a species impact statement, was a jurisdictional fact. Relevantly, that finding had the consequence that in those proceedings it was for the court to determine, on the evidence before it, whether the development proposed was likely to have the significant impact which mandated the need for a species impact statement to be obtained and provided to accompany the development application prior to its determination.
The decision did not determine that documents first lodged with a consent authority as a development application could never constitute a valid development application unless all documents mandated by the EPA Act for such an application were lodged as part of the material initially provided to the consent authority. What is required is that all those documents mandated by the EPA Act to constitute or to accompany a development application be lodged with the consent authority before the discretion afforded by the Act to determine the application is exercised. This would include a requirement that any mandatory step to be taken for public exhibition of the application and any accompanying material occur before a determination can validly be made.
As the Chief Justice observed in Timbarra at [37], the issue of jurisdictional fact was to be determined soley upon the proper construction of the EPA Act identifying the manner in which a development application is to be made. Clearly, condition B1(2) of the Concept Plan Approval did not involve the construction or application of any statutory provision. The statutory requirements for the making of a development application are found in s 78A of the EPA Act and cll 49 and 50 of the Environmental Planning and Assessment Regulation 2000. None of those provisions were invoked by Mr Oshlack in his submissions.
The only statutory provision identified by Mr Oshlack was s 122 of the EPA Act which defines that which constitutes a breach of the Act. He submitted that the 2011 development application by ARV was made in breach of the EPA Act because the application was made in contravention of Condition B1(2) of the Concept Plan Approval. I do not agree with that submission.
A development consent under Pt 4 or approval under Pt 3A of the EPA Act are instruments to be construed in a practical way on the basis that they are working documents, not usually prepared by lawyers or with the precision expected of Parliamentary Council when drafting legislation or statutory instruments (Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]; Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44 at [68]). Applying that approach to the Concept Plan Approval, I do not accept that Condition B1(2) had the effect contended for on behalf of Mr Kennedy.
Condition B1(2), read with paragraph (12) of the Statement of Commitments, has the purpose of requiring consultation with appropriate Aboriginal community members in relation to a "Women's Area" which may be on the ARV land and the provision of a report upon that process, by an anthropologist, before any application to undertake sub-surface archaeological investigation is approved under either Pt 3A or Pt 4 of the EPA Act. The undertaking of that process and the preparation of a report upon it is then seen as a tool enabling the relevant determining body to assess the impact, if any, from soil disturbance of any part of the ARV Land that may have significant Aboriginal cultural heritage.
The requirement for a stage of the development to be "generally consistent" with the terms of the Concept Plan Approval was expressed in paragraph (c) of the Minister's determination of the Concept Plan. I have earlier quoted that paragraph (at [26]). In terms, it identifies the need for general consistency with the approval "under 75P(2)(a) of the Act." Section 75P(2) relevantly provides:
"(2) If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply:
(a) the determination of a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the concept plan; ... ". (Emphasis added.)
The provisions of the subsection reinforce my view that it is the decision upon any development application that is required to be consistent with the conditions of the Concept Plan Approval. As that is the statutory provision identified, in terms, as informing paragraph (c) of the Minister's determination, I would read Condition B1(2) as requiring that the requisite report be available for consideration by the consent authority prior to determining any application "proposing to develop the ARV lands."
So understood, even if it be assumed that the report relied upon by ARV did not fulfil the requirement of Condition B1(2) at the time of lodging its development application with the Council, the development application was not "invalid", as Mr Oshlack contends it to be. Assuming that Condition B1(2) mandates the provision of the report before any valid development consent can be granted, as I believe it does, such a report may be provided at any time before the discretion available to the Court under s 80 of the EPA Act to determine the application is exercised.
Without conceding that the report already obtained does not meet the requirement, ARV has indicated that the further expert report that it has commissioned is a report intended to meet the requirements of Condition B1(2). As I have said, the Registrar has made directions for the provision of that report and for experts to meet with a view to preparing a joint report prior to the hearing fixed for 28 May next.
My decision addressing the various contentions of Mr Kennedy on his notice of motion makes it readily apparent that, on the material tendered and relevant to that motion, the appeal brought by ARV is a competent appeal. Moreover, Mr Kennedy has not discharged the "heavy" onus of establishing that the present appeal involves an abuse of process (Nikolaidis at [13]). ARV has exercised its statutory right allowing the Court to review, on its merits, the development application that the Council had refused. Whether the Court is satisfied that the requisite level of assessment upon any aspect of Aboriginal heritage, consistent with that identified in the Concept Plan Approval, has been met is a matter to be determined upon the available evidence at the final hearing of the proceedings. Importantly, the appeal process is not being used by ARV to gain some advantage for which an appeal of the present kind was not intended.
Mr Kennedy has submitted that he is "prejudiced" by the manner in which ARV now seeks to obtain the evidence which the Registrar has allowed ARV to obtain and for which directions as to service and preparation of joint reports was made before the present hearing date was fixed. Prejudice of that kind is not to be equated with the "oppression" which may found a summary dismissal application. Any perceived inadequacy in the time available to address new evidence adduced by ARV was, as Mr Oshlack acknowledges, the subject of submissions by him to the Registrar when she vacated the hearing dates originally fixed, made the directions for the preparation and exchange of evidence and fixed the new date for hearing. No application to review the Registrar's decision has been made. In the absence of such an application, I must assume that her decision involved an appropriate exercise of discretion on the evidence available to her.
Finally, it cannot be said that the exercise by ARV of its statutory right to appeal brings the administration of justice into disrepute. I have already considered what I consider to be the correct operation of Condition B1(2). The extent to which, if at all, that Condition impinges upon the grant of consent to the present development application is to be determined upon the final hearing of the proceedings. The debate between the parties as to the sufficiency of the existing evidence to address the question of Aboriginal heritage, coupled with that which is to be obtained, involves a factual determination which one would expect to be adjudicated in the final disposition of proceedings involving an appeal brought under s 97(1) of the EPA Act.
Conclusion
These reasons reflect those that caused me to indicate, at the conclusion of the hearing on Friday last, that I proposed to dismiss Mr Kennedy's notice of motion. I gave that indication as I did not wish to impinge upon the time necessary to be devoted to preparation of hearing by the parties that might otherwise be occasioned had I reserved my decision.
Having announced that I proposed to dismiss the notice of motion, ARV sought an order that is costs of the motion be paid by Mr Kennedy. These being proceedings in Class 1 of the Court's jurisdiction, the determination of the application for costs is governed by r 3.7 of the Land and Environment Court Rules 2007. Subrule (2) of that rule requires that an order for costs should not be made unless the Court considers it fair and reasonable so to do in the circumstances of the particular case.
Although Mr Robson SC, who appeared for ARV, made the application for costs, he indicated that he did not seek to further develop the submission that an order for costs should be made. Relevantly, he did not seek to identify why the presumptive position against the making of an order should be supplanted by a determination that such an order would, in the circumstances of this case, be fair and reasonable. While it may be thought that an unsuccessful summary dismissal application would, self-evidently, supplant the presumptive position, I would not be prepared so to determine in the present case without a more substantial submission.
For these reasons I will not make any order for costs. Each party should bear his and its own costs of the motion.
The orders that I make are therefore as follows:
1. The second respondent's amended notice of motion filed on 4 April 2013 is dismissed.
2. No order as to costs.
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Decision last updated: 23 April 2013
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