AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces

[2021] NSWCA 112

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112

Hearing dates:

26 April 2021

Date of orders:

03 June 2021

Decision date:

03 June 2021

Before:

Meagher and Leeming JJA at [1];
Preston CJ of LEC at [31]

Decision:

(1) Grant leave to appeal.

(2) Direct Dartbrook to file a notice of appeal amended in accordance with its written submissions in reply and otherwise dispense with the rules as to service.

(3) Appeal allowed.

(4) Set aside the orders made by the Land and Environment Court on 20 November 2020.

(5) In lieu thereof, dismiss paragraph 3 of the notice of motion filed 9 November 2020, without prejudice to HTBA’s entitlement to seek to be heard as to the making of orders pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW), with any amended notice of motion seeking to be heard to be filed and served within 7 days of today.

(6) Order HTBA to pay Dartbrook’s costs of proceedings in this Court.

Catchwords:

PRACTICE AND PROCEDURE – joinder – appeal against refusal of application to modify development consent – parties agree on terms of a decision to dispose of appeal – intervenor raising jurisdictional issue that court has no power to so dispose of the appeal – source of power to join intervenor – whether s 8.15(2) Environmental Planning and Assessment Act available power for joinder – section 8.15(2) not an available power of joinder for this appeal – whether r 6.24 Uniform Civil Procedure Rules alternative source of power for joinder – whether joinder as a party necessary to determine all matters in dispute - whether power to amend modification application – whether error in exercise of discretion to join intervenor – whether joinder legally unreasonable

Legislation Cited:

Civil Procedure Act 2005 ss 64, 75, 76, 173

Corporations Act 2001 (Cth) s 411

Environmental Planning and Assessment Act 1979 ss 8.6, 8.15(2) Part 3A, ss 75B, 75K, 75W, Part 4

Environmental Planning and Assessment Amendment Act 2017 sch 10, sch 13

Environmental Planning and Assessment Amendment Regulation 2018 sch 1

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 sch 2, cl 3BA, cl 12

Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011

Environmental Planning and Assessment Amendment (Part 3A Repeal) Regulation 2011 sch 1, sch 2

Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 cl 2

Environmental Planning and Assessment Regulation 2000 Part 1A, cl 8J

Judicature Act 1873 (UK) Sch 1 r 9

Judicature Act 1875 (UK) Sch 1 Order XVI r 13

Land and Environment Court Act 1979 ss 34(3), 38(2), 57

Mining Act 1992

State Environmental Planning Policy (Major Development) 2005 Sch 1, cl 2, cl 6

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007

State Environmental Planning Policy (State Significant Development) 2005

Uniform Civil Procedure Rules 2005 rr 6.23, 6.24

Cases Cited:

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357

Attorney General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3

Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3

Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164

Bondi Beach Astra Retirement Village Pty Ltd v Assem [2020] NSWSC 1814

Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210

Brown v West (1990) 169 CLR 195; [1990] HCA 7

Burton v Babb [2020] NSWCA 331

Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391

Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424; [2010] NSWCA 263

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362

Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259; [2001] NSWLEC 140

Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378

Fire Auto and Marine Insurance Ltd v Greene [1964] 2 QB 687

Flaherty v Hawkesbury City Council (2020) 244 LGERA 51; [2020] NSWLEC 29

Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 85 LGERA 339

Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19

Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56

King v Bathurst Shire Council (2006) 150 LGERA 362; [2006] NSWLEC 505

Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28

Leimroth v Wingecarribee Shire Council [2012] NSWLEC 256

Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31

Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) 159 LGERA 151; [2007] NSWLEC 540

Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Pilkington v Secretary of State for the Environment (1973) 26 P&CR 508; [1974] 1 All ER 283

Positive Change for Marine Life Inc v Byron Shire Council [2015] NSWLEC 147

Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236

Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34

Re Will of Gilbert (1946) 46 SR(NSW) 318

Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50

State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121

Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240

Valiant Timber and Hardware Co Pty Ltd v Blacktown City Council (2005) 144 LGERA 33; [2005] NSWLEC 747

Vandervell Trustees Ltd v White [1971] AC 912

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 524; [2014] NSWCA 105

Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180

Werderman v Societe Generale d’Electricite (1881) 19 Ch D 246

Category:

Principal judgment

Parties:

AQC Dartbrook Management Pty Ltd (Applicant)
Minister for Planning and Public Spaces (First Respondent)
Hunter Thoroughbred Breeders Association Inc (Second Respondent)

Representation:

Counsel:
Mr R P Lancaster SC, Ms N A Wootton (Applicant)
Submitting appearance (First Respondent)
Mr G R Kennett SC, Mr A Stafford (Second Respondent)

Solicitors:
Sparke Helmore Lawyers (Applicant)
Crown Solicitor’s Office (First Respondent)
Beatty Legal (Second Respondent)

File Number(s):

2020/357637

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 1

Citation:

[2020] NSWLEC 159

Date of Decision:

20 November 2020

Before:

Duggan J

File Number(s):

2019/346483

HEADNOTE

[This headnote is not to be read as part of the judgment]

AQC Dartbrook Management Pty Ltd (“Dartbrook”) had made an application to modify a development consent for an underground coal mine (“the Dartbrook Mine”) in the upper Hunter Valley. The modification application (“Mod 7 Application”) was made under s 75W of the Environmental Planning and Assessment Act 1979 Act (“EPA Act”) by means of legislation that saved these (now repealed) provisions. The Independent Planning Commission (“IPC”), as delegate of the Minister for Planning and Public Spaces (“Minister”) approved in part and refused in part the Mod 7 Application. Dartbrook appealed to the Land and Environment Court (“the Court”) against the IPC’s decision.

Dartbrook and the Minister participated in a conciliation conference under s 34 of the Land and Environment Court Act 1979 (“Court Act”) and an agreement was reached. After the agreement was published online, HTBA applied to be joined as a party to the proceedings. The primary judge ordered that HTBA be joined as a party to the proceedings under s 8.15(2) of the EPA Act. The primary judge’s main basis for joinder was to allow HTBA to raise the contention that the decision, agreed under s 34(3) of the Court Act, was not a decision that the Court could have made in the proper exercise of its functions. Dartbrook sought leave to appeal against the primary judge’s decision to join HTBA.

The questions for the Court of Appeal included:

(i) Whether power of joinder was available under s 8.15(2) EPA Act;

(ii) Whether joinder was capable of being supported by an alternative source of power, being r 6.24 UCPR;

(iii) Whether the primary judge erred in joining HTBA on the basis that it would raise contentions regarding the question of jurisdiction;

(iv) Whether the primary judge erred in concluding that merit considerations warranted joinder;

(v) Whether joinder was legally unreasonable.

The Court granted leave to appeal and held:

In relation to (i)

(Per Preston CJ of LEC, Meagher and Leeming JJA agreeing)

(1) Section 8.15(2) EPA Act is not available to support HTBA’s application for joinder. The right of appeal provided by s 75W(5) EPA Act continued in force by the transitional provisions and this constituted a distinct right of appeal. The consequence is that Dartbrook’s appeal against the IPC’s determination of the request to modify the development consent was an appeal under s 75W(5), which is not an appeal under Division 8.3 of the EPA Act: [3], [142]-[154].

In relation to (ii)

(Per Meagher and Leeming JJA):

(1) Rule 6.24 UCPR is an available source of power for HTBA’s joinder: [3];

(2) Following the agreement between Dartbrook and the Minister, the Court must be satisfied that the decision to which the parties have agreed is one which the Court could have made in the proper exercise of its jurisdiction: [9];

(3) A person who contends that a court lacks power to dispose of proceedings pursuant to s 34(3) is not thereby a necessary party to those proceedings. The fact that an objector wishes to make submissions on whether a decision is one which the Court could have made in the proper exercise of its powers, which would not otherwise have been raised by the parties, does not make the objector a necessary party: [12];

(4) HTBA was not a “necessary” party within the meaning of the second limb of r 6.24. First, HTBA does not enjoy any legal interest which is affected by the outcome of the litigation. Second, the statutory scheme reflected in s 34 would be subverted if, by reason of a willingness to make a submission on the precondition to the power, an objector was entitled to become a party. Thirdly, there are other mechanisms for addressing the position where there is doubt whether the decision is one which could have been made in the proper exercise of its functions short of joining the objector as a party. One is by participation as an amicus. [15], [17], [19].

(Per Preston CJ of LEC)

(5) The validity of the primary judge’s decision to join HTBA as a party to the appeal is not necessarily affected by the primary judge mistaking the source of power to make the decision: [155];

(6) Rule 6.24(1) UCPR is not an available source of power capable of supporting the primary judge’s decision to join HTBA to the proceedings because the primary judge did not consider and form an opinion of satisfaction regarding all of the requirements upon which a valid exercise of power in r 6.24(1) depends: [175];

(7) The jurisdictional question raised by HTBA was a matter in dispute in the proceedings, regardless of whether it was a matter in dispute between the parties: [179]-[181];

(8) Circumstances in which courts have held joinder of a person as a party is “necessary” fall into two main categories: first where the determination of the matters in dispute in the proceedings will affect the person to be joined in some material respect, such as directly affecting their rights or interests, and secondly, where the person to be joined can assist the Court in the determination of the matters in dispute: [187];

(9) Besides being joined as a party, there are two potential other modes of presence of a person in an administrative or merits review appeal in the Court – under s 38(2) Court Act, and as an amicus curiae. The availability of these powers to allow a person to be present at the conciliation conference in order to assist the Court in the determination of the matters in dispute in the proceedings has the consequence that the joinder of a person as a party, the particular mode of presence allowed by r 6.24(1), may not be necessary to the determination of the matters in dispute in these proceedings: [196], [197], [199].

In relation to (iii)

(Per Meagher and Leeming JJA)

(1) Having allowed the appeal on ground 1A, it is inappropriate to address ground 1. There is no good reason to resolve a point which the appellant would prefer not to be decided, in circumstances where that point was not advanced at first instance and where it was not as fully argued as it might be in this Court, and which (as is noted below) may not need to be decided at all. The Court below can determine on remitter whether the decision reached following the conciliation conference is one which the Court could have made in the proper exercise of its functions; if so, then the Court must dispose of the proceedings in accordance with that decision: [20], [28]

(Per Preston CJ of LEC)

(2) The jurisdictional question raised by HTBA was that the Court had no jurisdiction to dispose of the appeal in accordance with the decision agreed between the parties because the terms of that decision require the Court, first, to grant leave to Dartbrook to amend the application it had made under s 75W(2) requesting the Minister to modify the development consent and, second, to approve the application to modify the consent as so amended. The primary judge did not err in joining HRBA to raise this jurisdictional question as it was reasonably arguable: [207];

(3) Contrary to the assumption of the parties, there is no power to amend a request or an application to modify a development consent or an approval. No question therefore arises as to the scope of the power to allow the amendment of the request to modify the development consent sought by Dartbrook and the Minister: [227];

(4) There is no express or implied authority in the EPA Act allowing a proponent to amend its application to modify a development consent or an approval, or to allow a proponent to amend an application to modify a development consent or an approval prior to determining the application. The Court, on an appeal against the determination of a consent authority of an application or request to modify a development consent or an approval, therefore has no power to allow an applicant to amend the application to modify the development consent or approval. Nor does the Court have any power under s 64 of the Civil Procedure Act 2005 or Part 19 of the UCPR to amend, or to allow the amendment of, the application or request for modification of a development consent or an approval: [228], [252], [256], [260];

(5) The decision to allow the “minor amendments” of the application to modify the development consent is not a decision that the Court could have made in the proper exercise of its functions. The primary judge, therefore, committed no error in holding that HTBA’s contention that the Court lacked jurisdiction to allow the amendment of the application to modify the development consent was reasonably arguable. Indeed, it was more than reasonably arguable, it was correct. Despite being for incorrect reasons, the outcome is the same: [270]

In relation to (iv)

(Per Preston CJ of LEC)

(1) The reasoning of the primary judge has a logic and a foundation in the operation of s 34(3) and (4) of the Court Act. It does not reveal a material error of law sufficient to warrant appellate intervention in a discretionary decision on a matter of practice and procedure. Even if there were to be error, it would not be vitiating: [306], [307]

In relation to (v)

(Per Preston CJ of LEC)

(1) Dartbrook has not established that the primary judge made an error of law of a kind sufficient to found an appeal under s 57(1) of the Court Act: [319].

Judgment

1. MEAGHER and LEEMING JJA: Many issues were argued in this procedural appeal but on the view we take it may be resolved concisely and by the disposition of ground 1A. It should be said at the outset that the primary judge, called upon while sitting as Duty Judge to resolve an urgent application for a stay, produced a substantial judgment in short order, without the benefit of written and oral submissions of the calibre received by this Court.

2. We gratefully adopt the background contained in the judgment of Preston CJ of LEC, and will use the same abbreviations. We agree, for the reasons his Honour gives, that when Dartbrook’s application under s 75W of the EPA Act to modify its existing development consent was refused by the Minister’s delegate (the Independent Planning Commission), it had a right of appeal, under s 75W(5) as preserved by the transitional provisions, to the Land and Environment Court. The appeal fell within that court’s Class 1 jurisdiction.

3. We also agree, for the reasons given by Preston CJ of LEC, that s 8.15 was not available in support of HTBA’s application for joinder, but that r 6.24(1) of the Uniform Civil Procedure Rules (which HTBA had invoked in the alternative) was available. This seems not to have been appreciated by the parties until Dartbrook’s written submissions in reply in this Court. Certainly, the primary judge did not receive submissions on the operation of the transitional provisions governing the applicable rule.

4. Rule 6.24 provided:

“If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.”

5. In order to analyse whether the rule could support HTBA’s joinder, it is to be recalled that Dartbrook had commenced proceedings in the Land and Environment Court in the exercise of its right of appeal. The parties to that appeal were, no differently from other appeals of this nature, Dartbrook and the Minister. HTBA’s application to be joined as a party was made after Dartbrook and the Minister had reached agreement following a conciliation conference.

6. The Court was empowered, by s 34 of the Land and Environment Court Act 1979 (NSW), to arrange a conciliation conference between the parties, and the parties were required to participate, in good faith, in that conference: s 34(1A). There is no suggestion that the agreement was reached other than in good faith.

7. The parties reached agreement about the terms of a decision acceptable to both of them. Section 34(3) of the Land and Environment Court Act provides:

“If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a) must dispose of the proceedings in accordance with the decision, and

(b) must set out in writing the terms of the decision.”

8. That subsection distinguishes the parties’ “agreement” and the “decision” which will resolve the proceedings. The parties’ agreement may be limited to a decision which will resolve the proceedings, or it may extend beyond such a decision. Either way, the Court is then commanded to dispose of the proceedings in accordance with the decision, so long as the decision is one which “the Court could have made in the proper exercise of its functions”.

8. At that point, the only issue for the Court is whether the decision to which the parties have agreed is one which the Court could have made in the proper exercise of its jurisdiction.

9. It is trite that a court must always be satisfied that it has jurisdiction before exercising jurisdiction in a matter. Further, a court must always be satisfied before making an order that there is power to do so. An example may be seen in Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4 at [42]. The fact that the parties agree as to jurisdiction or power does not avoid the need for the Court to be satisfied, and, significantly for present purposes, the parties’ agreement can mean that the Court may not receive the benefit of opposing submissions on the point. Where the question of jurisdiction or power is straightforward, nothing much turns on that. Difficulties may arise in cases where the position is not straightforward.

10. The foregoing applies whenever agreement is reached at a s 34 conference. It also applies all the time in a range of other circumstances, including (a) approval of the compromise of representative proceedings under s 173 of the Civil Procedure Act 2005 (NSW); (b) approval of schemes of arrangement under s 411 of the Corporations Act 2001 (Cth) and (c) approvals of compromises where persons are under legal incapacity under ss 75 and 76 of the Civil Procedure Act. There are many other examples. Many are more complicated than the position which obtained after agreement had been reached at the conciliation conference. The only issue where agreement has been reached following a conciliation conference is whether the decision is one which the Court could have made in the proper exercise of its functions.

11. We agree, consistently with the reasoning of Preston CJ of LEC, that a person who contends that a court lacks power to dispose of proceedings pursuant to s 34(3) is not thereby a necessary party to those proceedings. The Land and Environment Court must be satisfied that the decision is one which could properly have been made. The Land and Environment Court may be concerned that that precondition is not satisfied, and that it has not received full submissions on the point. However, the fact that an objector wishes to make submissions on a point which would not otherwise have been raised by the parties does not make the objector a necessary party.

12. Our conclusion follows from three considerations.

13. First, rules permitting the joinder of persons as parties because they ought to have been joined, or whose joinder is necessary to ensure that all matters in dispute may be effectually and completely determined upon, have a long history. Materially equivalent language to r 6.24 may be seen in Order XVI r 13 reproduced in Werderman v Societe Generale d’Electricite (1881) 19 Ch D 246 at 251. This was directed to the doing away with the rule that proceedings were not defeated by the misjoinder or non-joinder of parties (the current form of that rule is found in UCPR r 6.23, but both rr 6.23 and 6.24 derive from a single rule originally enacted as r 9 of the schedule to the original Judicature Act 1873 which later became Order XVI r 13). The essential language and structure of the rule has been in place for some 150 years, although its introduction in New South Wales was delayed until 1972 (see Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210 at [96]-[102]).

14. The rule has two overlapping limbs: persons who “ought to have been joined” and persons “whose joinder as a party is necessary to the determination of all matters in dispute”. It is clear that HTBA was not a person which ought to have been joined by Dartbrook when the Class 1 appeal was commenced. Nor did HTBA become a “necessary” party within the meaning of the second limb of r 6.24 after Dartbrook and the Minister reached agreement following a conciliation conference. One reason for this is that HTBA does not enjoy any legal interest which is affected by the outcome of the litigation. As Brennan CJ said in Levy v State of Victoria (1997) 189 CLR 579 at 602; [1997] HCA 31 “[n]othing short of [a substantial] affectation of legal interests will suffice” to permit an application to intervene. Another reason is that there are other mechanisms which permit HTBA to advance the submissions it wishes to advance (see the third point below).

15. Secondly, the statutory scheme reflected in s 34 is one which encourages the parties to participate in good faith to settle their dispute. If agreement is reached, then the Court’s role is very significantly circumscribed: the only issue is whether the resultant decision is one which could have been made in the proper exercise of the Court’s functions.

16. That scheme would be subverted if, by reason of a willingness to make a submission on the precondition to the power, an objector was entitled to become a party. Ex hypothesi, the objector is not in agreement with the original parties to the litigation. By becoming a party there will no longer be agreement between all parties.

17. Indeed, one of the very issues as to which HTBA seeks to be heard – that arising under s 34(3), namely, whether the decision to which the parties have agreed is one that the Court could have made in the proper exercise of its functions – vanishes upon HTBA being joined as a party without any limitation. What is left is the appeal on the merits from the refusal by the Minister’s delegate of Dartbrook’s application under s 75W. That is not a matter as to which HTBA was a necessary or proper party.

18. Thirdly, there are other mechanisms for addressing the position where there is doubt whether the decision is one which could have been made in the proper exercise of its functions short of joining the objector as a party. One is by participation as an amicus. That is a further reason why the joinder is not “necessary”.

19. If an objector seeks to make submissions on a point which the Court would otherwise not receive submissions on, which is live between the parties, then it is open to that objector to apply to be heard as an amicus. The distinction between joining a person as a party, and permitting the person to be heard as an amicus was explained by Brennan CJ in Levy v State of Victoria at 604:

“The hearing of an amicus curiae is entirely in the Court’s discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. In Kruger v The Commonwealth, speaking for the Court, I said in refusing counsel’s application to appear for a person as amicus curiae:

‘As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application.’”

21. It follows that HTBA was not a necessary party within the meaning of r 6.24. Had the primary judge been directed to r 6.24, her Honour would have erred if she came to the contrary conclusion.

Orders

22. For those reasons, the discretion exercised by the primary judge miscarried. There should be a grant of leave, the appeal allowed, and the orders made on 20 November 2020 set aside. It is not necessary separately to address grounds 2 and 3, which overlap with the misapprehension of the power to join.

23. Dartbrook’s primary position was that this Court also should not determine ground 1 if it succeeded, as it has, on ground 1A. It concluded its oral submissions in this Court as follows: “On our primary position the appeal will be allowed and her Honour’s decision to join set aside and then the Senior Commissioner would be presented with the s 34 agreement and have to form a view that it’s able to be made a decision of the Court”. That would leave it to the Senior Commissioner to determine, inter alia, HTBA’s submission that the amendment to Dartbrook’s modification application to which the Minister had agreed was beyond power, as ground 1 contends.

24. Preston CJ of LEC has expressed the view that there was no power to amend Dartbrook’s modification application. Whether or not that is so is a pure question of law, and one which is capable of being determined for the first time in this Court. However, we are of the view that it is inappropriate to address that question. That is because it was common ground in the court below that there was power, in accordance with decisions such as Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245. It was also common ground in the parties’ submissions in this Court; the debate instead was whether the alterations were so significant as to amount to a “new” modification application. True it is that in the course of argument, it was suggested that there was an anterior point, namely, whether there was power to accede to any amendment of a modification application. The fact that this was only raised during the hearing meant that this Court received incomplete submissions on the point. There is no good reason to resolve a point which the appellant would prefer not to be decided, in circumstances where that point was not advanced at first instance and where it was not as fully argued as it might be in this Court, and which (as is noted below) may not need to be decided at all.

25. The position now, in May 2021, is quite different from the extreme urgency which attended HTBA’s application in November 2020. This has consequences for the future conduct of the litigation.

26. HTBA’s notice of motion sought joinder as a party or “[s]uch further or other orders that the Court deems fit”. It will be clear from the foregoing that there is an overlap between the submissions HTBA sought to advance if joined as a party, and an application to be heard as an amicus. As a matter of substance, HTBA is entitled to apply to be heard, as an amicus, on issues arising on the application for orders pursuant to s 34(3) which will not be fully addressed by the parties. Further, HTBA has more recently advised that it wishes to make submissions which have not hitherto been made on that issue. If HTBA seeks to make such an application, it should file an amended notice of motion.

27. By the same token, Dartbrook and the Minister are free to alter the terms of their agreement if they so choose. There is no reason why they are bound to the terms reached last November, or why they should be precluded from reaching an agreement which avoids the need to resolve some of the issues agitated in the litigation subsequently. The legislative purpose of s 34 is, where possible, to avoid the need for litigation.

28. The orders we propose leave it to the Land and Environment Court to determine whether the decision reached following the conciliation conference is one which the Court could have made in the proper exercise of its functions; if so, then the Court must dispose of the proceedings in accordance with that decision. In circumstances where, even today, the parties have not fully been heard on that issue, it is unnecessary to address any of the aspects which were debated, and which may, depending on the attitude of Dartbrook and the Minister, go away. To be clear, nothing in this judgment prevents HTBA seeking to be heard, as an amicus, on that issue. Nor does anything in this judgment prevent the Minister and Dartbrook from reaching an altered agreement in light of the arguments which have been presented. Whether HTBA makes such an application, and if it is made, whether the Land and Environment Court accedes to it, are not determined by the outcome of this appeal.

29. Costs in this Court should follow the event. The primary judge reserved costs of the application at first instance.

30. We propose the following orders:

1. Grant leave to appeal.

2. Direct Dartbrook to file a notice of appeal amended in accordance with its written submissions in reply and otherwise dispense with the rules as to service.

3. Appeal allowed.

4. Set aside the orders made by the Land and Environment Court on 20 November 2020.

5. In lieu thereof, dismiss paragraph 3 of the notice of motion filed 9 November 2020, without prejudice to HTBA’s entitlement to seek to be heard as to the making of orders pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW), with any amended notice of motion seeking to be heard to be filed and served within 7 days of today.

6. Order HTBA to pay Dartbrook’s costs of proceedings in this Court.

31. PRESTON CJ OF LEC:

A decision to join a party to an appeal is challenged

32. The applicant, AQC Dartbrook Management Pty Ltd (Dartbrook), seeks leave to appeal against an interlocutory decision of practice and procedure of a judge of the Land and Environment Court, Duggan J, to order the joinder of the second respondent, Hunter Thoroughbred Breeders Association Inc (HTBA), as a party to an appeal in the court below. That appeal is against the decision of the Independent Planning Commission (IPC), as delegate of the second respondent, the Minister for Planning and Public Spaces (Minister), to refuse Dartbrook’s request under s 75W of the Environmental Planning and Assessment Act 1979 Act (EPA Act) to the Minister to modify a development consent for an underground coal mine (the Dartbrook Mine) in the upper Hunter Valley.

33. Dartbrook contends that the primary judge erred in law in joining HTBA as a party to the appeal. Dartbrook raised, in its proposed grounds of appeal if leave to appeal were to be granted, four grounds. First, Dartbrook contends (in proposed ground 1A) that the primary judge did not have jurisdiction to join HTBA as a party to the appeal under s 8.15(2) of the EPA Act. Section 8.15(2) permits the joinder of a person as a party to an appeal “under this Division”, being Division 8.3 of the EPA Act. Pursuant to s 8.6(1), decisions subject to appeal under Division 8.3 are decisions of a consent authority under Part 4 of the EPA Act. The decision of the IPC, the subject of Dartbrook’s appeal, was not made under Part 4 of the EPA, but rather, by operation of transitional provisions, under s 75W in the repealed Part 3A of the EPA Act, so that Dartbrook’s appeal was also made under the repealed Part 3A. Section 8.15(2) did not apply to an appeal under the repealed Part 3A.

34. Secondly, and alternatively if ground 1A is not accepted, Dartbrook contends (in proposed ground 1) that the primary judge erred in the exercise of the power under s 8.15(2), if the power were to be available, to join HTBA to raise the jurisdictional issue of whether the terms of the decision agreed between the original parties to the appeal was “a decision that the Court could have made in the proper exercise of its functions”, so that the Commissioner was bound to dispose of the proceedings in accordance with the decision under s 34(3) of the Land and Environment Court Act 1979 (the Court Act). Dartbrook identifies three errors of the primary judge for this ground.

35. Thirdly, Dartbrook contends (in proposed ground 2) that the primary judge erred in deciding to join HTBA as a party in order to permit HTBA to raise three issues involving merit considerations, when all merit considerations were no longer in contention between the parties as a result of the parties having reached agreement under s 34(3) of the Court Act and hence did not need to be considered by the Court.

36. Fourthly, Dartbrook contends (in proposed ground 3) that the primary judge’s decision to join HTBA as a party to the appeal was legally unreasonable, in the sense that the decision reveals serious irrationality or illogicality.

Dartbrook needs leave to appeal

37. Dartbrook’s appeal against the IPC’s decision to refuse the request to modify the development consent is in Class 1 of the Court’s jurisdiction. Dartbrook’s request to modify the development consent was made under the former s 75W of the EPA Act. Section 75W(5) of the EPA Act entitled a proponent of a project who is dissatisfied with the determination of a request under s 75W to appeal to the Court. Such an appeal was assigned to Class 1 of the Court’s jurisdiction: s 17(d) of the Court Act before amendment. As I explain when dealing with proposed ground 1A, HTBA contests that Dartbrook’s appeal is under s 75W(5) of the EPA Act, rather than s 8.9 of the EPA Act, but this does not affect the class of jurisdiction to which the appeal is assigned. Even if the appeal were to be under s 8.9 of the EPA Act, it still would be assigned to Class 1 of the Court’s jurisdiction: s 17(d) of the Court Act.

38. The primary judge’s decision to join HTBA as a party to Dartbrook’s appeal was, therefore, a decision in proceedings in Class 1 of the Court’s jurisdiction. Dartbrook, as a party to proceedings in Class 1, has a right to appeal to this Court against the primary judge’s decision and order under s 57(1) of the Court Act. An appeal under s 57(1) is limited to being on a question of law. Because the primary judge’s decision and order to join HTBA as a party to the proceedings are interlocutory ones, an appeal does not lie to this Court except by leave of this Court: s 57(4)(d) of the Court Act.

The arguments for and against leave being granted

39. Dartbrook argues that leave to appeal should be granted in order for Dartbrook to raise the four foreshadowed grounds of appeal. Dartbrook accepted that the principles to be applied are those stated by Basten JA in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 at [32]-[38] and summarised by Bathurst CJ in The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13] as:

“Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable.”

40. Dartbrook submits that leave should be granted because:

1. the primary judge’s decision involves errors on questions of law, being the four grounds of appeal foreshadowed;

2. these errors raise questions of significance to the determination of Dartbrook’s appeal in circumstances where the parties had reached agreement under s 34(3) of the Court Act;

3. these errors materially and adversely affect the interests of Dartbrook because, as a result of the joinder of HTBA, the proceedings are likely not to be disposed of in accordance with the parties’ agreement but instead Dartbrook is faced with a contested hearing on the merits of multiple issues in the appeal; and

4. the primary judge’s decision works an injustice to Dartbrook. HTBA had no right to appeal against the Minister’s decision or to be heard on an appeal by Dartbrook against the Minister’s decision. Yet the primary judge’s decision to join HTBA achieved that result of entitling HTBA to participate as a party to Dartbrook’s appeal. As a party, HTBA can displace the agreement the other two parties have reached to dispose of the proceedings and force the matter to a contested hearing. This causes injustice to Dartbrook.

41. HTBA contests that Dartbrook has demonstrated an accepted basis for leave to appeal to be granted. First, HTBA notes that because the primary judge’s decision is an interlocutory decision on a point of practice and procedure, appellate restraint is warranted, as identified in Re Will of Gilbert (1946) 46 SR (NSW) 318 at 323 and Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424; [2010] NSWCA 263 at [177]. Second, the decision to join a person as a party to proceedings is a discretionary one, both as to the constraints that apply to the exercise of the power and the exercise of the power if the constraints are found to be satisfied: Delta Electricity v Blue Mountains Conservation Society Inc at [178]. Third, the primary judge’s decision as to the circumstances in which, and the conditions under which, the proceedings in the Land and Environment Court may be maintained are matters as to which an appellate court should accord a measure of deference in granting leave to appeal, and in reviewing on appeal, the decision of the primary judge: Delta Electricity v Blue Mountains Conservation Society Inc at [179].

41. Fourth, there is no question of broader principle or public importance raised by Dartbrook’s proposed grounds of appeal. The proposed grounds 2 and 3 concern only the primary judge’s particular exercise of the power to join HTBA to Dartbrook’s appeal and turn on the circumstances of the case and not any point of principle. Proposed ground 1, although concerning the jurisdictional question of whether the decision agreed between the parties was a decision the Court could have made in the proper exercise of its functions (the condition in s 34(3) of the Court Act), also turns on the facts and not a point of principle. The principles concerning determination of Class 1 proceedings where a s 34 agreement has been reached have already been settled, including by this Court in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245, as noted by the primary judge. The basis on which joinder was ordered by the primary judge – the arguable case of an absence of jurisdiction to allow an amendment of the modification application and to approve the amended modification application – involved merely an application of the settled principle that a Commissioner has no power to dispose of proceedings in accordance with a decision agreed between the parties if the decision is not one that the Court could have made in the proper exercise of its functions. As such, the primary judge’s decision, and Dartbrook’s proposed ground 1 challenging that decision, have no broader significance for litigants who have executed a s 34 agreement.

42. As to proposed ground 1A, which concerns the applicability of s 8.15(2) of the EPA Act as a source of power to join a person to an appeal under the former s 75W(5) of the EPA Act, the question is unlikely to arise again given that s 75W of the EPA Act has been repealed and the transitional provisions that preserve the entitlement of a proponent to request modification under s 75W only apply to requests for modification made before the cut-off date of 1 March 2018. Hence, even if proposed ground 1A could be seen to raise a matter of principle, it is of no importance for future joinder applications as it is unlikely to arise again.

43. Fifth, even if the primary judge’s decision were to involve some identifiable error on a question of law, it is not clear what injustice has occurred. Dartbrook will have the opportunity to argue fully before the Commissioner both the jurisdictional question of whether the decision agreed between the parties is one the Court could have made in the proper exercise of its functions and any merit issues the Court allows HTBA to raise. It is not injustice, but it is desirable, that the Court should have the benefit of all the evidence and full submissions to consider both the jurisdictional question and the merit issues.

44. HTBA also made a particular submission as to why leave to appeal should not be granted to Dartbrook to raise proposed ground 1A. The point raised by proposed ground 1A was not argued in the court below. Uniform Civil Procedure Rules 2005 (UCPR) r 6.24(1) was capable of sustaining the order for joinder made by the primary judge and was expressly identified as an alternative source of power for joinder in HTBA’s notice of motion. However, in the court below, both parties’ arguments focused on the power in s 8.15(2) of the EPA Act. Had Dartbrook raised the argument it now raises in proposed ground 1A, that s 8.15(2) of the EPA Act is not an available source of power to join a person to an appeal under s 75W(5) of the EPA Act, attention would have been directed to the alternative source of power in r 6.24 instead of, or as well as, s 8.15(2). HTBA submits that Dartbrook should not be permitted to raise for the first time on an application for leave to appeal a point which, even if successful, leads only to the reconsideration of the same interlocutory point of whether joinder should be ordered under a different source of discretionary power.

Leave to appeal should be granted for one ground, not the others

46. I have determined that leave to appeal should be granted to Dartbrook to raise proposed ground 1A, but not proposed grounds 1, 2 or 3.

47. With respect to ground 1A, for the reasons I give below, Dartbrook has established that the primary judge erred on a question of law in deciding to join HTBA as a party to the proceedings. The primary judge mistook the source of power to join HTBA as being s 8.15(2) of the EPA Act, which was not available in the appeal brought by Dartbrook. The alternative source of power in UCPR r 6.24(1) was not capable of supporting the primary judge’s decision to join HTBA as a party to the proceedings.

48. The error of the primary judge involves issues of principle and public importance. The availability of the sources of power to join a person as a party to proceedings, in s 8.15(2) of the EPA Act and UCPR 6.24(1), raise issues of principle and public importance. Applications are regularly made to the Court by persons seeking joinder as a party to proceedings. This Court’s adjudication of the issues raised by proposed ground 1A will be of assistance in future applications for joinder.

49. The particular question of the applicability of s 8.15(2) of the EPA Act as a source of power to join a person to an appeal under the former s 75W(5) of the EPA Act can still arise, notwithstanding the repeal of s 75W of the EPA Act and the transitional provisions fixing a cut-off date of 1 March 2018 for a proponent to request modification of an approved project or concept plan under s 75W. This is because the transitional provisions still allow for an approved project or concept plan to be modified under s 75W in certain circumstances (see cl 3BA(2), (3) and (4) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017).

50. It may be accepted that the issues raised by proposed ground 1A could have been raised by Dartbrook in the court below. Dartbrook could have submitted to the primary judge that the power of joinder in s 8.15(2) of the EPA Act was not available to be exercised on Dartbrook’s appeal under s 75W(5) of the EPA Act and that the alternative source of power of UCPR r 6.24(1) identified in HTBA’s notice of motion for joinder was also not available in the circumstances. No satisfactory explanation was provided for Dartbrook not raising these issues before the primary judge. It would appear from the fact that all parties only addressed the source of power in s 8.15(2) of the EPA Act, and not UCPR r 6.24(1), that the parties believed that this source of power was available to join HTBA to Dartbrook’s appeal, if the primary judge was satisfied that joinder under s 8.15(2) was appropriate.

51. Nevertheless, proposed ground 1A involves error of law on material issues in the primary judge’s decision to join HTBA, which goes to the power of the primary judge to have made the decision. Such issues may more readily be allowed to be raised on an appeal notwithstanding they were not raised in the court below.

52. With respect to proposed grounds 1, 2 and 3, leave to appeal should not be granted for three reasons.

53. First, Dartbrook has not established error on a question of law, which is necessary for an appeal under s 57(1) of the Court Act.

54. Secondly, the principles of appellate restraint in reviewing an exercise of discretion on a point of practice and procedure, as articulated by HTBA, support not granting leave to appeal on the grounds proposed by Dartbrook.

55. Thirdly, no matters of principle or public importance are raised by these proposed grounds of appeal. As HTBA submits, proposed grounds 2 and 3, and the second and third particulars for proposed ground 1, identify errors of fact, not errors on a question of law. The first of the particulars for proposed ground 1 does identify error on a question of law and a point of principle, but the error is not made out. Indeed, the primary judge’s conclusion that the jurisdictional contention raised by HTBA was arguable was insufficiently assertive – the jurisdictional contention was correct in law.

56. I now need to explain my reasons for upholding the first proposed ground of appeal and rejecting the other three proposed grounds of appeal. In order to understand these proposed grounds of appeal, and in particular the first two grounds concerning jurisdiction, it will be helpful to set out the factual history of and applicable law governing Dartbrook’s request to modify the development consent for the Dartbrook Mine; the IPC’s determination of the request; Dartbrook’s appeal against the IPC’s decision; the stage to which the appeal had progressed (namely the parties having reached agreement at a conciliation conference held under s 34 of the Court Act) when HTBA applied to be joined as a party to the appeal; HTBA’s application for joinder; and the primary judge’s decision to join HTBA as a party.

The grant of consent and later request to modify the consent

57. Underground coal mining operations at Dartbrook, near the town of Aberdeen in the upper Hunter Valley, were originally approved by the Minister for Planning granting development consent under Part 4 of the EPA Act on 2 September 1991. The consent approved longwall mining of the Wynn Seam until 2012; construction of surface facilities including the coal handling and preparation plant (CHPP), rail loop and rail loading facilities; establishment of a reject emplacement area (REA) at the base of Browns Mountain; and construction of the Hunter Tunnel.

58. In 1996, geological and geotechnical constraints and the presence of high levels of gas (methane) led the former owner to later seek approval to shift mining to the shallower Kayuga, Mt Arthur and Piercefield Seams.

59. On 28 August 2001, the Minister for Urban Affairs and Planning granted development consent DA 231-7-2000 under Part 4 of the EPA Act for extended mining operations at the Dartbrook Mine. This is the relevant development consent that Dartbrook seeks to modify. The development consent approved longwall mining operations in three coal seams, the Kayuga, Mt Arthur and Piercefield Seams, and the extraction of 6 million tonnes per annum of run-of-mine (ROM) coal. The consent also approved the continued use of the CHPP, rail loop and rail loading facilities; installation of a paste plant to blend coarse and fine rejects; construction of a pipeline to transfer reject paste to the REA and expansion of the REA; construction of a new access portal to the Kayuga Seam, the Kayuga Entry (formerly the Kayuga Seam Access Slot); and temporary transportation of ROM coal overland via private haul road to the CHPP, until underground roadways are connected to the Hunter Tunnel.

60. The approved mining operations are split between two sites separated by four linear surface features, being the Hunter River, the Dart Brook, New England Highway and Main Northern Rail Line. Underground mining occurs at the West Site, while the East Site contains the major surface facilities, including the CHPP and rail loading facilities. The East and West Sites are connected by the Hunter Tunnel, which previously housed an underground coal conveyor system to transfer ROM coal underground without disruption to the major surface infrastructure and waterways. The consent operated for 21 years until 5 December 2022.

61. After consent was granted, longwall mining continued in the Wynn Seam but in 2004, shifted from the Wynn Seam to the Kayuga Seam. Longwall mining continued in the Kayuga Seam until late 2006 when the mine was placed into care and maintenance.

62. On 1 August 2005, the EPA Act was amended by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 to insert a new part, Part 3A, providing for a new regulatory mechanism for approval of major infrastructure and other projects by the Minister and the modification of the Minister’s approval to carry out a project under Part 3A. At the same time a new Part 1A was inserted into the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) dealing with projects to which Part 3A of the EPA Act applied.

63. A project to which Part 3A applied was any development declared under s 75B to be a project to which Part 3A applied. One means of declaring development to be a project to which Part 3A applied was by a State environmental planning policy (s 75B(1)(a) of the EPA Act).

64. On the commencement of Part 3A on 1 August 2005, State Environmental Planning Policy (State Significant Development) 2005 was renamed State Environmental Planning Policy (Major Development) 2005 (Major Development SEPP) and provided that certain kinds of development declared under the former Policy to be State significant development are declared instead to be projects to which Part 3A applied.

65. One of the kinds of development declared to be a project to which Part 3A applied was development of a kind described in Schedule 1 (cl 6(1)(a) of the Major Development SEPP). Clause 5 of Schedule 1 included development for the purpose of mining that is coal mining, amongst other kinds of development for the purpose of mining. However, cl 6(2) of the Major Development SEPP provided that any such development does not become a project to which Part 3A applied by operation of cl 6(1) if “the carrying out of that development has been authorised by a consent that is in force under Part 4 of the Act before development of that kind is declared under subclause (1)”.

66. In this case, development consent for the Dartbrook Mine was granted by the Minister under Part 4 of the EPA Act on 28 August 2011, before coal mining was declared to be a project to which Part 3A applied. Accordingly, the development of the Dartbrook Mine did not become a project to which Part 3A applied by the operation of cl 6(1) of the Major Development SEPP.

67. Later on, on 16 February 2007, another State environmental planning policy regulating development for the purpose of mining, State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP), was made but it did not declare development to which the Policy applied to be development to which Part 3A applied.

68. The upshot was that the development of the Dartbrook Mine was not declared under s 75B of the EPA Act to be a project to which Part 3A applied.

69. There was, however, another means by which Part 3A could, and did, apply to the Dartbrook Mine. On the commencement of Part 3A on 1 August 2005, a new Part, Part 1A, was inserted in the EPA Regulation. Clause 8J as made contained transitional provisions, but did not allow for the use of the mechanism for modification of an approval for a project under s 75W of the EPA Act for a development consent granted under Part 4 of the EPA Act before the commencement of Part 3A. The omission was rectified shortly afterward. The Environmental Planning and Assessment Amendment (Major Projects – Transitional Provision) Regulation 2005, although gazetted on 7 December 2005, was taken to have commenced on the date of assent of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005, which was 16 June 2005 (cl 2).

70. Amongst the amendments was the insertion of a new subclause (8) in cl 8J, which provided:

“A development consent in force immediately before the commencement of Part 3A of the Act may be modified under section 75W of the Act as if the consent were an approval under that Part, but only if:

(a) the consent was granted with respect to development that would be a project to which Part 3A of the Act applies but for the operation of clause 6(2)(a) of State Environmental Planning Policy (Major Projects) 2005, and

(b) the Minister approves the development consent being treated as an approval for the purposes of section 75W of the Act.

The development consent, if so modified, does not become an approval under Part 3A of the Act.”

71. This amendment overcame the exclusion, effected by cl 6(2)(a) of the Major Development SEPP, as a project to which Part 3A applied of development that had been authorised by a consent that was in force under Part 4 of the EPA Act. It did this by taking development consents of the kind specified in cl 8J(8) to be approvals under Part 3A of the Act, but only for the purpose of modifications of such consents under s 75W of the EPA Act. Section 75W(2) simply provides: “The proponent may request the Minister to modify the Minister’s approval for a project…”. The term “Minister’s approval” was defined in s 75W(1) to mean “an approval to carry out a project under this Part…”. The effect of cl 8J(8) was that certain development consents were taken to be such a Minister’s approval, so as to allow a proponent to request the Minister under s 75W to modify such a development consent. The development consent, if so modified, did not, however, become an approval under Part 3A of the EPA Act.

72. In late 2006, the Dartbrook Mine was placed in care and maintenance. The longwall mining equipment was removed, the Hunter Tunnel for the conveyance of coal from the Wynn Seam to the East Site was decommissioned, and the underground coal conveyor system was removed. The mine has remained in care and maintenance since that time.

73. On 1 October 2011, Part 3A of the EPA Act was repealed by the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011. Schedule 1 to this Amendment Act inserted a new Sch 6A to the EPA Act, which provided for transitional arrangements on the repeal of Part 3A. One of the arrangements (in cl 3(1)) was for Part 3A to continue to apply to “transitional Part 3A projects”, which were defined in cl 2 (Sch 1, s 1.7 [2]). The Dartbrook Mine was not a transitional Part 3A project as defined.

74. Clause 3(4) of Schedule 6A revoked any declaration of development as a project under Part 3A, such as the declaration under the Major Development SEPP, if the development is not, or ceases to be, a transitional Part 3A project.

75. The transitional arrangements in the Schedule 6A to the EPA Act were revised by various Regulations. One was the Environmental Planning and Assessment Amendment (Part 3A) Regulation 2011, the revised arrangements commencing on the repeal of Part 3A, and another was the Environmental Planning and Assessment Further Amendment (Part 3A Repeal) Regulation 2011, which commenced on 1 December 2011. Neither of these amendments to Schedule 6A to the EPA Act caused the Dartbrook Mine to become a transitional Part 3A project.

76. The Environmental Planning and Assessment Amendment (Part 3A Repeal) Regulation 2011 did, however, amend Schedule 6A to add a new clause that continued the application of Part 3A to modifications of certain development consents. Clause 12 of Schedule 6A provided:

“Section 75W of Part 3A continues to apply to modifications of the development consents referred to in clause 8J(8) of the Environmental Planning and Assessment Regulation 2000, and so applies whether an application for modification is made before or after the commencement of this clause.”

77. The Environmental Planning and Assessment Amendment (Part 3A Repeal) Regulation 2011 also amended Part 1A of the EPA Regulation, to convert it from dealing with major projects under Part 3A to dealing with transitional Part 3A projects. The transitional provisions in cl 8J, originally serving to effect the transition to projects under Part 3A, now served to effect the transition from projects under Part 3A. Clause 8J(8), however, continued to allow proponents to request the Minister under s 75W of the EPA Act to modify a development consent, including a development consent granted by the Minister under Part 4 of the EPA Act. As at 1 October 2011, the date on which Part 3A of the EPA Act was repealed and the amended Part 1A of the EPA Regulation commenced, clause 8J(8) provided:

“For the purposes only of modification, the following development consents are taken to be approvals under Part 3A of the Act and section 75W of the Act applies to any modification of such a consent:

(a) a development consent granted by the Minister under section 100A or 101 of the Act,

(b) a development consent granted by the Minister under State Environmental Planning Policy No 34 – Major Employment Generating Industrial Development,

(c) a development consent granted by the Minister under Part 4 of the Act (relating to State significant development) before 1 August 2005 or under cl 89 of Schedule 6 to the Act,

(d) a development consent granted by the Land and Environment Court, if the original consent authority was the Minister and the consent was of a kind referred to in paragraph (c).

The development consent, if so modified, does not become an approval under Part 3A of the Act.”

78. The development consent granted by the Minister on 28 August 2001 under Part 4 of the EPA Act was a development consent of a kind described in cl 8J(8) and was therefore amenable to being modified under s 75W of the EPA Act, notwithstanding the repeal of Part 3A (which included s 75W of the EPA Act).

79. These transitional arrangements permitted Part 3A to live on long after its repeal in 2011, as its provisions allowing modification of approvals under Part 3A and development consents under Part 4 still continued in force. Eventually, however, the government brought these transitional arrangements to an end, by the Environmental Planning and Assessment Amendment Act 2017. Schedule 13 to that Amendment Act, which was the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, was taken to be and had effect as a regulation made under the Act (Schedule 10, cl 10.1, [2]). Schedule 10 to that Amendment Act also omitted Schedule 6A from the EPA Act and transferred it to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 as Schedule 2 (Schedule 10, cl 10.2 [7]). The Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 commenced on the date of commencement of Schedule 13, which was 1 March 2018.

80. Schedule 2 to this Regulation contained the transferred transitional arrangements on repeal of Part 3A (the former Schedule 6A to the EPA Act). Schedule 4 to this Regulation contained transferred transitional provisions from the EPA Regulation, including cl 8J. Clause 8J(8) remained in the same terms as earlier quoted.

81. Also on 1 March 2018, the Environmental Planning and Assessment Amendment Regulation 2018 commenced. Schedule 1 amended the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, including importantly inserting cl 3BA which introduced the cut-off date of 1 March 2018 for making a request to modify an approval project under s 75W of the EPA Act (Schedule 1 [9]) and amending cl 12 to make it subject to cl 3BA (Schedule 1 [15]). Schedule 1 also amended Sch 4 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 to insert a new Part 1A, providing that the interpretation of the transferred transitional provisions of the EPA Regulation (which included cl 8J) was not affected by the transfer and renumbering the part containing the transferred provisions to be Part 1B (Sch 1 [16]).

82. Clause 12 of Schedule 2 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 allows for the continuing application of Part 3A to modifications of certain development consents:

“Section 75W of Part 3A continues to apply (subject to clause 3BA) to modifications of the development consents referred to in clause 8J (8) of the Environmental Planning and Assessment Regulation 2000, and so applies whether an application for modification is made before or after the commencement of this clause.”

83. As this clause states, this is subject to cl 3BA of Schedule 2. Clause 3BA provides for the winding up of the transitional Part 3A modification provisions on a cut-off date of 1 March 2018. Clause 3BA(2) provides that an approved project cannot be modified under s 75W on or after the cut-off date (which is defined in cl 3BA(1) to be 1 March 2018) except as provided by the clause. To avoid doubt, clause 3BA(7)(b) provides that subcl (2):

“extends to a modification under s 75W in relation to a development consent that is taken to be an approved project pursuant to cl 8J of the Environmental Planning and Assessment Regulation 2000”.

84. Clause 3BA(3) provides, however, that subcl (2) does not apply if the request to modify the approved project under s 75W was lodged before the cut-off date.

85. Clause 3BA(4) also sets a date by which a request to modify an approved project under s 75W needs to be dealt with:

“A request to modify an approved project or concept plan under section 75W that may be dealt with because of subclause (3) cannot be dealt with under section 75W if—

(a) the request has not been determined by 1 September 2018, and

(b) the Secretary is of the opinion that insufficient information has been provided to deal with the request and notifies the person who made the request that it will not be dealt with under section 75W.”

86. Dartbrook sought to avail itself of the mechanism in s 75W to request the Minister to modify the development consent for the Dartbrook Mine before the cut-off date. Dartbrook lodged its request for modification with the Director-General of the Department of Planning, as required by s 75W(3), on 28 February 2018, just before the cut-off date of 1 March 2018. This was the seventh request for modification of the development consent that Dartbrook had made (the Mod 7 Application).

87. The Mod 7 Application described the original development that the development consent allows as follows:

“DA231-7-2000 allows for underground mining operation to be undertaking until 5 December 2022. The approved mining activities include longwall mining of the Kayuga, Mr Arthur, Wynn and Piercefield coal seams. DA231-7-2000 allows for coal to be extracted at a rate of up to 6.0 million tonnes per year of Run of Mine (ROM) coal. The approval also authorises the processing and transportation of coal extracted from the underground mine.”

88. The Mod 7 Application requested the Minister to modify the development consent in three respects:

“Undertake mining of the Kayuga Seam using the first workings bord and pillar method as an alternative to the approved longwall mining within the Kayuga seam.

In addition to the approved operations, ROM coal will also be hauled using road registered trucks on existing private roads to a new shaft facility located between the existing private Western Access Road and New England Highway. The new, enclosed shaft will be used to deliver coal via the existing Hunter Tunnel under the New England Highway to an existing stockpile. Crushed, unbeneficiated raw coal will be delivered to train loadout facility.

Extend the period of DA231-7-2000 [the development consent] by 5 years to 5 December 2027.”

89. The Minister had delegated his function under s 75W to modify approvals to the IPC.

90. On 9 August 2019, the IPC approved in part and refused in part the Mod 7 Application. The IPC modified the development consent on conditions to allow coal mining operations to the original date of 5 December 2022 but refused to grant a further extension of 5 years to 5 December 2027.

91. The date of the IPC’s determination of the Mod 7 Application of 9 August 2019 is nearly one year after the date of 1 September 2018 in cl 3BA(4)(a) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 by which a request to modify an approved project may be dealt with. However, cl 3BA(4) operates to prevent a request to modify an approved project under s 75W that may be dealt with because of cl 3BA(3) if not only the request was not determined by 1 September 2018 but also if the Secretary of the Department of Planning is of the opinion that “insufficient information has been provided to deal with the request and notifies the person who made the request that it will not be dealt with under s 75W”. In the case of Dartbrook’s Mod 7 Application, the Secretary did not notify Dartbrook under cl 3BA(4)(b) that the request will not be dealt with under s 75W. Hence, cl 3BA(4) did not operate to prevent Dartbrook’s request from being dealt with under s 75W, notwithstanding that the request was not determined by 1 September 2018.

92. The Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 dealt specifically (in cl 20 of Schedule 2) with modifications of certain approved projects and development consents relating to mining or petroleum development on strategic agricultural land. Clause 20(1) provides:

“This clause applies to the following requests and applications—

(a) a request to modify an approved project,

(b) an application for the modification of a development consent referred to in clause 8J(8) of the Environmental Planning and Assessment Regulation 2000,

but only if the request or application relates to mining or petroleum development on the following land—

(c) land shown on the Strategic Agricultural Land Map,

(d) any other land that is the subject of a site verification certificate.”

93. If cl 20 does apply, the request or application must be accompanied by a current gateway certificate in respect of the proposed development to be carried out under the modified approval or consent or a site verification certificate that certifies that the land is not biophysical strategic agriculture land: cl 20(4).

94. As earlier noted, Dartbrook’s Mod 7 Application is an application for the modification of a development consent referred to in cl 8J(8) of the EPA Regulation (which was transferred to Sch 4 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017), so that paragraph (b) is satisfied, and the land on which the Dartbrook Mine is carried out is shown on the Strategic Agricultural Land Map, so that paragraph (c) is satisfied. The Mod 7 Application does not, however, relate to “mining or petroleum development”, as defined in cl 20(2)(a) of Schedule 2. “Mining or petroleum development” is defined to include:

“(a) development specified in clause 5 of Schedule 1 to State Environmental Planning Policy (Major Development) 2005 (as in force immediately before the repeal of that Schedule), but only if—

(i) a mining lease under the Mining Act 1992 is required to be issued to enable the development to be carried out under the modified approval or consent because—

(A) the development is proposed to be carried out outside the mining area of an existing mining lease, or

(B) there is no current mining lease in relation to the proposed development, …”.

95. Whilst the Dartbrook Mine is development specified in cl 5 of Schedule 1 to the Major Development SEPP, the development is not proposed to be carried out outside the mining area of the existing mining leases, CL386, ML1381, ML1456 and ML1497. Accordingly, a mining lease under the Mining Act 1992 is not required to be issued to enable the development to be carried out on the modified consent. Clause 20, does not, therefore apply to Dartbrook’s Mod 7 Application.

The appeal to the Court against the IPC’s decision to refuse the modification

96. Dartbrook appealed against the IPC’s decision to refuse in part the Mod 7 Application to modify the development consent. Section 75W(5) provides:

“The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal.”

97. Three of these criteria are satisfied: the development of the Dartbrook Mine is not a critical infrastructure project; Dartbrook is not a public authority; and, but for Part 3A, the provisions of Part 4 would apply to the development. The question is whether the development has or has not “been the subject of a review by the Planning Assessment Commission” within paragraph (c).

98. The IPC is the successor to the Planning Assessment Commission. The IPC, as delegate of the Minister, determined Dartbrook’s Mod 7 Application. However, that determination did not constitute “a review” of the development within paragraph (c). The former Planning Assessment Commission not only had the function “to determine applications for the approval of projects and concept plans under Part 3A if those matters are delegated to it by the Minister” (s 23D(1)(a) of the EPA Act as then in force) but also had the function “to review any aspect of the project, or a concept plan, under Part 3A” (under s 23D(1)(b)(ii) of the EPA Act as then in force). The IPC, by the time it determined Dartbrook’s Mod 7 Application, did not have any function to review any aspect of a project or a concept plan under Part 3A. The IPC did have the “functions of the consent authority under Part 4 for State significant development that are (subject to this Act) conferred on it under this Act” (s 2.9(1)(a) of the EPA Act) and “any functions under this Act that are delegated to the Commission” (s 2.19(1)(b)), amongst other functions, but it no longer had any function to review any aspect of any project under Part 3A.

99. As Dartbrook’s Mod 7 Application was a request for modification of a development consent under s 75W under the repealed Part 3A and not an application for modification of a development consent under Part 4 of the EPA Act, the IPC was not exercising the function of the consent authority under Part 4 of the EPA Act. Rather, the IPC was exercising the function of the Minister under s 75W to modify the development consent that had been delegated by the Minister to the IPC. The result is that the IPC did not conduct a “review” of the development of the Dartbrook Mine when determining the Mod 7 Application.

100. As a consequence, the development of the Dartbrook Mine was a project to which s 75K applies, so to engage the right of appeal under s 75W(5).

101. Clause 8E(4) of the EPA Regulation (which was transferred to Schedule 4 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017) prescribed the time within which an appeal may be made under s 75W(5) as being three months after the date on which the proponent received or is taken to have received notice of the determination of the request for a modification of the approval for a project in accordance with s 153 of the EPA Act (as the section was then numbered). The IPC’s determination was on 9 August 2019, so that the three month period would not expire earlier than 9 November 2019. Dartbrook lodged its appeal to the Court on 4 November 2019, before the expiry of this three month period.

102. As I will explain further below when dealing with proposed ground 1A, Dartbrook’s appeal was made under s 75W(5) of the EPA Act, which was originally within Part 3A. The transitional arrangements preserve not only the mechanism for a proponent to request the Minister under s 75W to modify a development consent but also the right of a proponent who is dissatisfied with the determination of such a request to appeal to the Court. The appeal so permitted remained an appeal under the repealed but saved s 75W(5). The Court has jurisdiction to hear and dispose of an appeal under s 75W(5) in Class 1 of its jurisdiction (s 17(d) of the Court Act before amendment).

The conduct of the appeal in the Court

103. After Dartbrook filed its appeal on 4 November 2019, the Minister filed a statement of facts and contentions on 16 January 2020. The Minister maintained the IPC’s decision to refuse the 5 year extension of the development consent sought in the Mod 7 Application for four sets of reasons:

1. The cumulative impact of the mining operations, which includes the previously approved longwall method as well as the newly approved bord and pillar method, was not adequately considered in the Mod 7 Application (paragraph 32);

2. In the absence of appropriate consideration of assessment of the air quality, noise, subsidence, groundwater and greenhouse gas emissions, social and environmental costs of the project, and the costs associated with the potential reopening and operation of the washery and reinstatement of the Hunter Tunnel, the modification cannot be considered to be in the public interest (paragraph 33);

3. The social impacts resulting from a 5 year extension of mining operations under the approval have not been appropriately considered or assessed (paragraph 46); and

4. The applicant has not established that the proposed extension of the approval for 5 years under the Mod 7 Application is consistent with the facilitation of ecologically sustainable development (paragraph 42).

104. On 19 March 2020, Dartbrook and the Minister participated in a conciliation conference arranged by the Court under s 34 of the Court Act. The conciliation conference was adjourned until 6 July 2020 for the purpose of allowing Dartbrook to provide further material responsive to the Minister’s contention.

105. On 23 July 2020, Dartbrook’s solicitor responded to these contentions, amongst other things, indicating that it would no longer seek to modify the coal clearance system approved under the development consent.

106. On 13 August 2020, the IPC placed Dartbrook’s response to contentions on public exhibition. The IPC received many submissions in response, including one from HTBA.

107. On 7 and 9 October 2020, Dartbrook’s solicitor sent a response and a supplementary response to the submissions received by the IPC.

108. On 12 October 2020, the conciliation conference resumed and an agreement in principle was reached between Dartbrook and the Minister about the terms of a decision that would be acceptable to them. The Minister’s representative indicated that notice of the proposed agreement should be given to the objectors.

109. By 30 October 2020, the terms of the proposed agreement under s 34(3) of the Court Act had been agreed between Dartbrook and the Minister. The conciliation conference resumed on that afternoon, at which time the parties provided the Commissioner with a signed copy of the agreement that they had reached. The terms of the agreement were fivefold:

“1. The parties have reached agreement as to terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).

2. The terms of the decision are as follows:

(a) The Appeal is upheld.

(b) Leave is granted to the Applicant to make the minor amendments to the application to modify DA231-7-2000 reflected in the Dartbrook Mine Modification Response to Contentions (Hansen Bailey July 2020).

(c) The Court notes the Applicant has made an offer to enter into a planning agreement on the terms required by condition 11.4 of Schedule 2 and Appendix 5 of annexure A.

(d) The application to modify DA231-7-2000 (MOD7) is approved, subject to the conditions in annexure A.

(e) No order as to costs.

3. A copy of the document referred to in clause 2(b) of this agreement is attached as annexure “B”.

4. Pursuant to sections 34(3)(a) and (b) of the Land and Environment Court Act 1979 (NSW) there is a requirement for the Court to dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties have identified the jurisdictional pre-requisites of relevance in these proceedings, a copy of which is Annexure “C” to this agreement. The parties are in agreement that the jurisdictional pre-requisites have been satisfied.

5. The Respondent proposes to give notice for seven days of this agreement and annexures A, B and C on the Independent Planning Commission website on 2 November 2020. The parties request that the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in clause 2 above following the expiry of that notice period and not before 10 November 2020.”

288. I consider that the primary judge did misdirect herself by adopting a similar test to that used in a strike out application in determining whether the issue HTBA sought to raise by contention 1 is an issue that should be considered in relation to the appeal, but that error on a question of law was not material or vitiating. The reason is that the primary judge started her inquiry by asking the correct question, being the question raised by paragraph (a) of s 8.15(2), and finished her inquiry by answering that correct question. The primary judge’s diversion, in between asking and answering the correct question, to consider the similar test to that applied in a strike out application, was not material. This was evident from the primary judge’s reasoning in [50]. The primary judge did find that the issue raised by particulars (ii) and (iii) of contention 1 “is one that is reasonably arguable”, which echoes the test for a strike out application, but then found that that reasonably arguable issue was “an issue that should be considered in relation to the appeal”, which is the test in s 8.15(2)(a). Reading these two findings together, the primary judge can be seen to have concluded that the jurisdictional issue raised by particulars (ii) and (iii) of contention 1 should be considered in relation to the appeal because it is reasonably arguable in the context of the legislative regime. If the issue had not been reasonably arguable, as was the case with the matters raised by the other particulars to contention 1, the issue would not be one that “should be considered in relation to the appeal.”

289. For these reasons, Dartbrook has not established the three errors raised by ground 1 of its proposed appeal. Proposed ground 1 should be rejected.

Proposed ground 2: Error in concluding that merit considerations warranted joinder

Dartbrook’s argument that the primary judge erred

295. By proposed ground 2, Dartbrook challenges the primary judge’s decision “that the Intervenor should be joined to address the issues identified in Contentions 2-4 of its Statement of Contentions” (at [55]). Dartbrook contends that the primary judge erred in deciding in two respects. First, once the parties had reached agreement on the terms of a decision in the proceedings that would be acceptable to the parties, there were no merit issues remaining to be considered or determined by the Court. Section 34(3)(a) of the Court Act provides that where agreement is reached between the parties as to the terms of a decision in the proceedings that is acceptable to the parties, the Commissioner must dispose of the proceedings in accordance with the decision. The provision leaves no room for a consideration of “merit considerations”. Such merit considerations are subsumed by the agreement reached between the parties: Al Maha Pty Ltd v Huajun Investments Pty Ltd at [71]-[79].

296. The primary judge accepted that contentions 2-4 raised by HTBA “relate to merit considerations” and “are matters that appear to be no longer contentious between the parties” (at [53]). Yet, the primary judge nevertheless joined HTBA in order “to address the issues identified in contentions 2-4” (at [55]). The primary judge thereby erred in joining HTBA to raised merit issues that were no longer in contention and hence could not be issues that “should be considered in relation to the appeal”, being the first requirement in s 8.15(2)(a) of the EPA Act.

297. Secondly, there was circularity in the primary judge’s reasoning. The primary judge accepted that the merit considerations raised by HTBA’s contentions 2-4 were “no longer contentious between the parties”. Rather than that accepted finding leading to the conclusion that HTBA should not be joined as it cannot raise an issue that should be considered in relation to the appeal, the primary judge concluded to the contrary that it justified joining HTBA because otherwise these issues will not be sufficiently addressed on the appeal. Dartbrook submits that the error in this conclusion is that it ignores the critical first question raised by s 8.15(2)(a) of whether these merit issues “should be considered” in relation to the appeal. Only if the issue should be considered does the inquiry move to the second question raised by s 8.15(2)(a) of whether the issues are not likely to be sufficiently addressed if HTBA were not joined as a party.

298. The primary judge, having found that the issues were no longer contentious, moved straight to the second question, which she answered by finding that those issues would not be likely to be sufficiently addressed if HTBA were not to be joined as a party. In doing so, the primary judge failed to answer the first question of whether the issues should be considered in relation to the appeal. Having regard to the parties’ agreement under s 34(3), the only answer open was that the merit issues were not ones that should be considered in relation to the appeal.

HTBA’s argument that the primary judge did not err

299. HTBA’s response was twofold. First, even if the primary judge did err in the manner alleged by Dartbrook in joining HTBA to raise contentions 2-4, such error would not vitiate the primary judge’s orders from which the appeal is made, as the primary judge had already decided to join HTBA to raise contention 1. Once HTBA is joined it becomes a party for all purposes: Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 396. Accordingly, any error in joining HTBA for the additional reason of being able to raise contentions 2-4, where the primary judge had already decided to join HTBA so as to be able to raise contention 1, cannot vitiate the primary judge’s decision.

300. Secondly, and relatedly, the primary judge’s decision to join HTBA to raise contentions 2-4 was not an independent basis for joinder, but only arose once the primary judge had found that HTBA should be joined to raise contention 1. The primary judge was being realistic in recognising that the consequence of joining HTBA to raise the jurisdictional issue in contention 1 would be that all three parties would not be prepared to dispose of the proceedings in terms of the s 34 agreement that had been reached by only two of the parties, Dartbrook and the Minister. In that circumstance, the Commissioner could not dispose of the proceedings under s 34(3)(a) and instead would need to terminate the conciliation conference under s 34(4) of the Court Act. This is what the primary judge was saying in [55].

301. HTBA further submitted that the primary judge was not required to reapply s 8.15(2)(a) to contentions 2-4 in circumstances where the primary judge had already determined that HTBA should be joined to raise contention 1, having applied s 8.15(2)(a) to that contention.

The primary judge not shown to have erred on a question of law

302. I find that Dartbrook has not established that the primary judge has made a material error of law of the kind required for an appeal under s 57(1) of the Court Act. Although the primary judge, in the abbreviated manner in which she expressed her reasons for allowing HTBA to be joined to address the issues identified in contentions 2-4, might on one view be seen to have made the errors raised by Dartbrook, I consider that a fair reading of her reasons reveals that the primary judge’s logic is that explained by HTBA, which does not reveal error.

303. The primary judge found that “the intervenor has demonstrated that it is appropriate that it be joined for the purposes of raising contention 1” at [55]. Once HTBA is joined as a party to the proceedings, the primary judge found, it is “likely that the Commissioner will have to determine the merits of the appeal” (at [55]). The unstated, but obvious, reason is that HTBA is not likely to reach agreement with the other two parties as to the terms of the decision in the proceedings that would be acceptable to all of the parties. HTBA is not likely to agree to the agreement that had already been reached between the other two parties, Dartbrook and the Minister, as that involves the Court modifying the development consent so as to allow mining for another 5 years, a result that HTBA opposed. The primary judge had earlier recognised this was the likely result: “The natural consequence of the joinder of an additional party to these proceedings is that the s 34 Agreement cannot be made unless all parties (including any joined party) agree to its terms” (at [18]).

304. The result would be that it could no longer be said that “agreement is reached between the parties… as to the terms of a decision in the proceedings that would be acceptable to the parties”, which is the necessary condition to engage the obligation of the Commissioner to dispose of the proceedings in accordance with the decision. In that circumstance, the Commissioner will have no option but to terminate the conciliation conference under s 34(3). The proceedings will then need to be fixed for a hearing before another Commissioner or judge, unless the parties consent to the Commissioner disposing of the proceedings under s 34(3)(b). Either way, however, there will be a hearing of the appeal, in which there will be a consideration and adjudication of merit considerations going to the acceptability of the proposed modifications of the development consent. This explains why the primary judge found that “it is therefore likely that the Commissioner will have to determine the merits of the appeal” (at [55]).

305. The primary judge then found that the merit considerations raised by HTBA in contentions 2-4 would be unlikely to be sufficiently addressed, as “the Minister is unlikely to advocate against an approval” (at [55]). This meant that “the Intervenor should be joined to address the issues identified in contentions 2-4 of its Statement of Contentions” (at [55]).

306. This reasoning of the primary judge has a logic and a foundation in the operation of s 34(3) and (4) of the Court Act. It does not reveal a material error of law sufficient to warrant appellate intervention in a discretionary decision on a matter of practice and procedure.

307. There is also force in HTBA’s submission that, even if material error be found, it is not vitiating as the primary judge’s decision to join HTBA so as to allow it to raise contention 1 is unaffected by any error in the primary judge’s additional reason for joinder to allow HTBA to raise contentions 2-4.

308. Proposed ground 2 should be rejected.

Proposed ground 3: Joinder was legally unreasonable

Dartbrook’s argument that the primary judge erred

309. Dartbrook’s proposed third ground of appeal is that the primary judge’s decision to join HTBA “in all the circumstances was unreasonable and the primary judge did not properly exercise the discretion reposed in the Court below by s 8.15(2) of the EPA Act”. Dartbrook identified two relevant considerations supporting this ground.

310. First, the primary judge did not refer to or consider the fact that HTBA would, in the absence of joinder, have no right of appeal to the Court against any decision of the Minister to approve the request to modify the development consent under s 75W of the EPA Act. That section only gives the proponent a right of appeal to the Court, under s 75W(5).

311. Second, the primary judge made a “fundamental error of fact” in [51] of the judgment. The primary judge noted that “it was open to the Minister to impose conditions on the Modification Request requiring the modification to exclude the mining of Piercefield Seam and the approval of the above ground infrastructure…”. The primary judge found that this had not been done:

“However, that is not the approach taken by the Minister or the Applicant in this case. The parties seek [for] the Court to vary the Modification Request prior to the grant of approval thereby raising for consideration the power that the Court has to approve the Varied Modification Request.” (at [51]).

312. Dartbrook contends that this finding is factually incorrect. The parties not only sought for the Court to grant leave to Dartbrook to make minor amendments to the application to modify the development consent, they also sought for the Court to approve the application to modify the development consent on the conditions in annexure A to the parties’ agreement. These conditions included conditions 1.1(a)(xi), 2.3(c) and 2.4, which required the modification to exclude the mining of the Piercefield Seam and the removal of the above ground infrastructure, the two things the primary judge identified the conditions could have required but did not require.

HTBA’s argument that the primary judge did not err

313. HTBA disputed at the outset that this proposed third ground of appeal raises a question of law, which is necessary for an appeal under s 57(1) of the Court Act against a decision or order, including an interlocutory decision or order, in Class 1 of the Court’s jurisdiction: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 524; [2014] NSWCA 105 at [4]. The two considerations identified by Dartbrook, which concern incorrect factual findings, do not demonstrate what the alleged unreasonableness is or in what respect the primary judge is alleged to have not properly exercised the discretion under s 8.15(2) of the EPA Act.

314. In respect of the first consideration, HTBA submits that, on a fair reading of the primary judge’s reasons as a whole, the primary judge should be taken to be aware of the fact that HTBA would, in the absence of joinder, have no right of appeal to the Court. First, HTBA’s lack of a right of appeal against the Minister’s determination of Dartbrook’s request to modify the development consent was the very reason for HTBA applying to be joined as a party to the proceedings, either under s 8.15(2) of the EPA Act or r 6.24 of the UCPR. The primary judge cannot not have known that HTBA had no right otherwise to appeal to the Court.

315. Secondly, the primary judge extracted the statement of principle in Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 at [43] that the EPA Act draws a distinction between different types of development and the different rights to be a party to an appeal to the Court for the different types of development. This evidences consideration by the primary judge of the question of who has rights of appeal.

316. Thirdly, the primary judge expressly noted in argument at the hearing of the application for joinder that “the statutory scheme doesn’t give a right of appeal” to HTBA “unless they’re joined as a party” (12/11/20 T60:1-2) and was informed by HTBA’s counsel that “there was never any appeal right for the purposes of s 75W” and “it’s not one of the cases where my client would have an appeal right” (12/11/20 T62:8-9).

317. Finally, HTBA submits that a lack of a right of appeal of the person applying for joinder is not a consideration required by s 8.15(2) of the EPA Act in any event. The significance of the principle noted in Morrison Design Partnership Pty Ltd v North Sydney Council at [43] was to underscore the fact that joinder is limited by the circumstances set out in the subparagraphs of s 8.15(2) and is not a de facto appeal right. The primary judge applied these terms of s 8.15(2).

318. In respect of the second consideration, HTBA submits that the primary judge, in making the observations in [51], did not overlook the fact that the parties were seeking, by paragraph 2(d) of the terms of the decision agreed between the parties, for the Court to grant approval to the request to modify the development consent on the conditions in annexure A. The primary judge had earlier set out the terms of the decision, including paragraph 2(d) (at [15]). The primary judge noted that the parties have requested that the Court give effect to the s 34 agreement in these terms (at [16]). Two of the conditions on which the parties agreed approval should be granted constrained the proposal to what was newly proposed in the amended modification request (conditions 2.3(c) and condition 2.4). The other condition (condition 1.1(a)(xi)) merely required the proposal to be carried out consistently with, amongst other documents, the Response to Contentions document that identified the amendments to the modification request for which leave was sought in paragraph 2(b) of the parties’ agreement.

The primary judge not shown to have erred on a question of law

319. I find Dartbrook has not established that the primary judge made an error of law of a kind sufficient to found an appeal under s 57(1) of the Court Act. I accept HTBA’s submissions that the primary judge did not fail to consider the fact that HTBA did not have a right of appeal to the Court against the Minister’s decision in relation to Dartbrook’s request to modify the development consent. The primary judge was clearly aware of this fact, as HTBA has explained.

320. The primary judge also did not misunderstand that the parties sought for the Court to grant approval on conditions. The primary judge set out the terms of the decision agreed between the parties, which included paragraph 2(d) that the request to modify the development consent be approved subject to the conditions in annexure A. Those conditions implemented the amendments to the modification request for which leave was sought in paragraph 2(b).

321. The primary judge’s observation in [51] of the judgment was directed to a different point. She was simply pointing out that the parties did not need to have sought the Court’s leave to amend the modification request, as they had done in paragraph 2(b) of their agreement, because the modification request without amendment could have been approved on conditions that effected the amendments they sought. The primary judge observed that if this approach had been taken, there would have been no basis for HTBA’s contention that the Court has no jurisdiction to grant leave to the applicant to amend the modification request. The primary judge noted, however, that this was not the approach taken by the parties. They did seek for the Court to grant leave to the applicant to amend the modification request prior to the Court granting approval on conditions, thereby raising for consideration the power the Court has to allow the amendment of the modification request and to approve any amended modification request.

322. No error of law is revealed in the primary judge’s observation. Proposed ground 3 should be rejected.

Disposition of the application for leave to appeal

323. With respect to proposed ground 1A of appeal, Dartbrook has established that the primary judge mistook the source of power to join HTBA as being 8.15(2) of the EPA Act, and that the primary judge’s decision to join HTBA cannot be supported by the alternative source of power in r 6.24 of the UCPR. Proposed ground 1A should therefore be upheld. Dartbrook has otherwise not established its proposed grounds 1, 2 or 3 of appeal.

324. In these circumstances, leave to appeal should be granted with respect to proposed ground 1A, but not for the other proposed grounds. Dartbrook’s appeal on proposed ground 1A should be upheld and the orders of the primary judge joining HTBA as a party to the proceedings in the court below set aside.

325. The upholding of proposed ground 1A means that neither of the bases relied on by HTBA for joinder as a party are sustainable. However, HTBA’s notice of motion not only sought joinder as a party but also in paragraph 4 “such further or other orders that the Court thinks fit.” This prayer for relief is ample enough for HTBA to seek an order allowing HTBA to appear either under s 38(2) of the Court Act or as an amicus curiae to inform and assist the Court in the determination of the jurisdictional question of whether the decision agreed between the parties under s 34(3) is a decision the Court could have made in the proper exercise of its functions.

323. HTBA has at the hearing of this appeal foreshadowed that if Dartbrook and the Minister no longer seek for the Court below to grant leave to Dartbrook to amend the application to modify the consent, but instead request the Court to approve the application with conditions to achieve the same result, it would wish to submit that such a decision would also not be a decision that the Court could have made in the proper exercise of its functions. If HTBA wishes to make either application, it should amend its notice of motion in the Court below accordingly.

324. Equally, Dartbrook and the Minister may wish to alter the terms of the decision that they have agreed. As I have indicated, the term of the decision that the Court grant leave to Dartbrook to amend its application to modify the development consent is not one the Court could have made in the proper exercise of its functions. But that term of the decision is unnecessary. The Court, exercising the functions of the consent authority, can grant approval to the application to modify the development consent as made on conditions. This course is proposed in one of the terms of the decision. Dartbrook and the Minister can agree to altered terms of a decision that would be acceptable to them and then seek for the Court to dispose of the proceedings in accordance with that altered decision.

325. The orders I propose this Court should make will set aside the primary judge’s orders, dismiss paragraph 3 of the notice of motion that sought an order for joinder as a party, allow HTBA if it wishes to apply to amend the notice of motion to seek an order that it appear otherwise than as a party, allow Dartbrook and the Minister if they wish to alter their agreement to propose different terms of a decision that the Court should make, and allow the Court to decide HTBA’s notice of motion (if amended) and whether the decision Dartbrook and the Minister have agreed on (if altered) is a decision the Court could have made in the proper exercise of its functions.

326. I propose the Court should make the following orders:

1. Grant leave to appeal.

2. Direct Dartbrook to file a notice of appeal amended in accordance with its written submissions in reply and otherwise dispense with the rules as to service.

3. Allow the appeal.

4. Set aside the orders made by Duggan J of the Land and Environment Court on 20 November 2020.

5. Dismiss paragraph 3 of the notice of motion filed 9 November 2020, without prejudice to HTBA’s entitlement to seek to be heard as to the making of orders pursuant to s 34(3) of the Land and Environment Court Act 1979 (NSW), with any amended notice of motion seeking to be heard to be filed and served within 7 days of today.

6. Order HTBA to pay Dartbrook’s costs of the proceedings in this Court.

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Amendments

16 December 2021 - Coversheet – “Werdeman v Societe Generale” changed to “Werderman v Societe Generale”

[14] – “Werdeman v Societe Generale” changed to “Werderman v Societe Generale”

[15] – “Brennan J” changed to “Brennan CJ”

[20] – “Brennan J” changed to “Brennan CJ”

[57] – “coal handling and preparation plan” changed to “coal handling and preparation plant”

[113] – “alternative to the approval longwall mining” changed to “alternative to the approved longwall mining”

[114] – “being first not to proceeding with the alternative” changed to “being first not to proceed with the alternative”

[144] – “(under s 75(4))” changed to “(under s 75W(4))”

[144] – “(under s 75(5))” changed to “(under s 75W(5))”

[241] – “(s 96(2) and s 96AA(2)” changed to “(s 96(2) and s 96AA(1)”

[245] – “administrative fragility” changed to “administrative rigidity”

Decision last updated: 16 December 2021