Byron Shire Council v Master Alchemy Pty Ltd

[2020] NSWLEC 12

Land and Environment Court

New South Wales

Medium Neutral Citation:	Byron Shire Council v Master Alchemy Pty Ltd [2020] NSWLEC 12
Hearing dates:	20 February 2020
Date of orders:	20 February 2020
Decision date:	25 February 2020
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See at [57] and [58].
Catchwords:	PROCEDURE: application for stay of Class 4 civil enforcement proceedings pending final determination of two Class 1 proceedings relating to the same development - application to consolidate Class 4 and Class 1 proceedings to be heard before a judge- applicable legal principles- no presumption that Class 4 matter should be stayed- matters dealt with identical subject-matter and raised almost identical legal and factual issues- similar expert evidence required for all sets of proceedings- savings in time and costs if matters heard concurrently- application for stay dismissed- application to hear all three sets of proceedings together upheld- order for joinder of relevant Minister to all three sets of proceedings- order for mediation to occur on site made.
Legislation Cited:	Byron Local Environmental Plan 1988 Byron Local Environmental Plan 2014 Civil Procedure Act 2005, ss 26, 56, 66 Environmental Planning and Assessment Act 1979, ss 4.2(1)(a), 9.34, 9.46(3) Marine Estate Management Act 2014, ss 56(1), 55(3)(a)(i) and (ii) Marine Estate Management (Management Rules) Regulation 1999, cls 1.1, 1.10(a), 1.11(1) Marine Estate Management Regulation 2017, cls 5, 8.1, 9 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Attard v Transport for New South Wales [2013] NSWLEC 176 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 Diab v Cavasinni [2019] NSWLEC 204
Category:	Procedural and other rulings
Parties:	Bryon Shire Council (Applicant) Master Alchemy Pty Ltd (Respondent)
Representation:	Counsel: J Lazarus SC (Applicant) L Nupuri (Respondent)   Solicitors: Mills Oakley (Applicant) Wilshire Webb Stanton Beattie Lawyers (Respondent)
File Number(s):	2019/351992

Judgment

Byron Shire Council and Master Alchemy Make Opposing Applications as to the Order That Matters Are Heard and Determined

1. In duelling notices of motion, the parties to two Class 1 appeals and a civil enforcement claim in Class 4 of the Court’s jurisdiction (“the matters”), effectively seek orders from the Court as to the order in which the matters are to heard and determined.

2. Byron Shire Council’s (“Council”) notice of motion filed on 12 December 2019, seeks an order that the matters be consolidated and heard together before a judge principally because they concern the same subject-matter and the legal questions and evidence are common across all three sets of proceedings.

3. By contrast, Master Alchemy Pty Ltd’s (“Master Alchemy”) notice of motion filed 2 December 2019, seeks to stay the hearing of the Class 4 proceedings until after the determination of the Class 1 appeals.

4. While the Court contemplated a third course, namely, to stay the Class 1 appeals pending the final determination of the Class 4 civil enforcement proceedings, in order to avoid the potential of a multiplicity of proceedings and to ensure finality of litigation, the most just, quick and cheap course (see s 56 of the Civil Procedure Act 2005 (“CPA”)) was to accede to the Council’s application. Accordingly, the Court made orders in accordance with the Council’s notice of motion (including orders, made by consent, granting leave to the Council to file an amended summons and points of claim), together with an order joining the Minister for Water, Property and Housing (“Minister”) as a party to the matters and an order for mediation pursuant to s 26 of the CPA. For reasons of efficiency, the Court’s reasons were reserved until today.

Master Alchemy Builds a Walkway and Jetty into Belongil Creek Without Consent

5. The background to these applications is found in the agreed statement of facts filed by the parties and in the following affidavits relied upon by them in support:

1. the affidavits of Ms Cecilia Rose affirmed 12 December 2019 and 18 February 2020 (the solicitor for the Council); and

2. the affidavits of Mr Anthony Whealy affirmed 2 December 2019 and 17 January 2020.

6. Master Alchemy is the owner of Lots 35 and 36 in Section 3 of DP 1623, known as 4 Childe Street, Byron Bay (“the site”).

7. From about October to December 2017, a timber deck, jetty, retaining wall, stairs and associated works (“the works”) were constructed on (“the lands”):

1. land belonging to Master Alchemy;

2. Lot 5 in DP 729063 known as Belongil Creek, which is Crown land under the Crown Lands Management Act 2016 (“CLM Act”); and

3. Lot 37 in Section 3 of DP 1623 (“Lot 37”) which is a public reserve managed by the Council under the CLM Act.

8. Evidence of the location of the works was contained in plans and photographs annexed to the affidavits of Ms Rose.

9. The lands on which the works are constructed is partially zoned W1 – Natural Waterways under the Byron Local Environmental Plan 2014 ("BLEP 2014"), and partially zoned "deferred matter" ("DM").

10. The DM portion of the land is subject to the Byron Local Environmental Plan 1988 ("BLEP 1988") and is zoned 7(f2) (Urban Coastal Land Zone) in accordance with that instrument.

11. It was not in dispute that the works were permitted only with development consent in the 7(f2) (Urban Coastal Land) zone under the BLEP 1988.

12. It was also not in dispute that the works were permitted only with development consent in the W1 – Natural Waterways zone under the BLEP 2014.

13. Part of the works are on land mapped as “Coastal Wetlands” in accordance with the State Environmental Planning Policy (Coastal Management) 2018.

14. A component of the works extends into the Belongil Creek and is on land declared to be a Marine Park pursuant to the Marine Estate Management Act 2014 and the Marine Estate Management (Management Rules) Regulation 1999.

15. The works were not exempt development pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

16. Master Alchemy admits that no development consent has been sought or obtained for the works in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (“EPAA”).

17. The construction of the works involved earthworks (backfill to the retaining wall associated with a viewing platform and the wharf construction) on the western side of Master Alchemy’s land, as well as the placement of piers and the consequential removal of vegetation.

18. On 8 March 2019 Master Alchemy lodged a Building Information Certificate Application (no 50.2019.12) (“BIC”) with the Council in respect of the works.

19. On the same day it lodged a Domestic Waterfront Licence application.

20. On 15 April 2019 the Council issued Order no 3 and Order no 10 under s 9.34 of the EPAA (“Orders”). The Orders sought the demolition of the works located on the lands on the basis that no development consent had been obtained for the works. The Orders also sought restoration of the land.

21. Consequently, on 6 May 2019 Master Alchemy commenced Class 1 proceedings in respect of the Orders seeking their revocation or modification (“the Class 1 Orders appeal”).

22. On 23 May 2019, the Council issued a determination refusing the BIC.

23. Accordingly, on 12 June 2019 Master Alchemy commenced a Class 1 appeal against the Council’s refusal to grant the BIC (“the Class 1 BIC appeal”).

24. On 28 June 2019, Master Alchemy lodged a Land Owner’s Consent application for the works on the Crown land.

25. On 3 July 2019, the Registrar ordered that the two Class 1 appeals be consolidated and listed to be heard together.

26. On 16 October 2019, Master Alchemy received a letter from the Department of Planning, Industry & Environment – Crown Lands refusing the application for land owner’s consent in respect of any development application for the works because of:

Objections from Department of Primary Industries – Fisheries and Marine Estate Management Authority to unauthorised works in Belongil Creek (Cape Byron Marine Park).

27. On 8 November 2019, the NSW Department of Industry – Crown Lands and Water Division emailed the Council indicating that the refusal to grant owner’s consent also applied to Master Alchemy’s application for a BIC.

28. Land owner’s consent has therefore not, as required, been obtained in respect of the works.

29. On 8 November 2019 the Council commenced Class 4 civil enforcement proceedings against Master Alchemy.

30. Master Alchemy has informed the Council that it intends to amend the BIC application the subject of the Class 1 BIC appeal in order to remove all of the works that encroach upon allotments that are not owned by it. The application to amend was filed on 17 January 2020.

31. On 9 December 2019 the Council revoked the Orders. To date Master Alchemy has not, however, withdrawn the Class 1 Orders appeal nor has it filed a development application for the works.

The Allegations Made in the Class 4 Proceedings and the Contentions Filed in the Class 1 BIC Appeal Raise Similar Issues of Law and Fact

The Class 4 Points of Claim

32. As amended with leave on 20 February 2020, the Council seeks the following relevant relief in its summons:

1    A declaration that in constructing or arranging for the construction of the timber landing, jetty, stairs and retaining walls (“Works”) located adjacent to and in Belongil Creek at Lots 35 and 36 in Section 3 of DP 1623, Lot 5 in DP 729063 and Lot 37 in Section 3 of DP 1623 (collectively, “the Land”), the respondent has carried out development without development consent, in breach of section 4.2(1)(a) of the Environmental Planning and Assessment Act 1979.

2   An order that the Works be demolished and/or removed.

3   An order that the Land:

a.   be restored to the condition that it was prior to the Works being undertaken;

and

b. be monitored and maintained in accordance with a program approved by the applicant for a period of five years from the date of the Orders to ensure plant survival and removal of weeds are undertaken.

33. In its cognate amended points of claim the Council pleads the following:

Impacts of the Works

10   The Respondent’s Land adjoins mangrove flood flats and the banks of Belongil Creek.

11   The Respondent’s Land is a few metres above mean high tide and is subject to active erosion on its eastern edge.

12   The construction of the Works involved earthworks (backfill to the retaining wall associated with the viewing platform and wharf construction) on the western side of the Respondent’s Land.

13    Vegetation clearing also occurred, in Belongil Creek and into the Respondent’s Land.       

Particulars

Trees cut include Grey Mangrove, Swamp Oak and Beach Acronychia. Trees impacted upon by the Works include Cottonwood Hibiscus, Coastal Tuckeroo and Coast Banksia.

14    The tree removal, clearing and earthworks associate with the construction of the Works have modified the edge of Belongil Creek estuary.

15    Parts of the Respondent’s Land, Lot 37 and Belongil Creek are flood liable.

16    The earthworks, vegetation, and tree removal undertaken has shifted soil and altered the bank formation of on the edge of Belongil Creek, which may alter the flow of characteristics of water and flood waters across adjacent lands and waterways.

17    The impact of the Works on adjacent Grey Mangroves means they will be unlikely to survive, and the secondary impacts of non-survival of the Grey Mangroves include impacts on aquatic habitats including the loss of shallow water habitats important to juvenile fish.

The Class 1 BIC Appeal

34. Relevantly, Master Alchemy’s Statement of Facts and Contentions (“SOFC”) filed by it in the Class 1 BIC appeal on 1 August 2019 sets out the following relevant environmental contentions:

Environmental Outcomes

4   The Works have a minimal and predominantly positive or otherwise remedial environmental impact, and the process of effecting their removal would result in more adverse environmental outcomes than their preservation and regularisation.

5   In addition to improved safety and accessibility, the Works will also reduce environmental impacts associated with the use of the right of way, and in particular to the extent that the right of way extends over the mangroves and Belongil Creek. As a result of the Works, the likelihood of damage to the mangroves and the bank of the Belongil Creek caused by the ongoing pedestrian use of the right of way will be reduced, because the deck provides a walkway for foot passage and the continued use of the right of way over this part of the land rather than directly through it.

6   Future implementation of compensatory measures weighed against any clearing of vegetation and dead trees that were removed in the replacement of the retaining wall and the construction of the deck could result in the Works having neutral or positive environmental impact.

7   A review of the photographs available on various real estate websites indicate that the large trees along the Belongil Creek bank in this location were already dead and/or had been cleared at the time when the property was last listed for sale, which was prior to its sale to the Applicant in 2015

…

8   In carrying out the Works, there was no deep or significant excavation into the creek bank or creek bed. The jetty was cantilevered into the waterway with supports within the waterway for the jetty and the steps placed on, rather than dug down into the creek bed.

9   The Applicant is not aware that the Belongil Creek bed contains active seagrass growth or any trace evidence of active seagrass growth, which might otherwise be adversely impacted upon by any overshadowing over the water which might be caused by the deck and jetty structures.

10   The Works were carried out in the context of a wider attempt to minimise and mitigate environmental harm via erosion protection works. The retaining wall which was replaced in the carrying out of the Works was eroding part of the creek bank and required replacement to protect from further erosion. The replacement retaining wall which was erected for erosion protection is structurally supported and reinforced by the remainder of the Works, particularly the deck structure.

11   The removal of the Works would result in more adverse environmental impacts than the retaining and maintaining of the Works. To demolish and remove the deck and stairs would require heavy machinery, likely to include at least a crane and some excavation equipment, which would result in more adverse environmental impacts.

12   The removal of the Works in their totality would result in adverse erosion impacts. The removal of the Works to the exclusion of the retaining wall would impact the structural integrity of the retaining wall significantly and could result in its deterioration and collapse into the creek, which would result in adverse impacts on the mangroves, wetland ecosystems and biodiversity, including by causing creek bed soil and sediment disturbance.

13   The regularisation and maintenance of the Works allows for the Applicant to effectively carry out remedial control of the Madeira vine (Anredera cordifolia), which is a Weed of National Significance that has become increasingly prevalent along the Belongil Creek bank, including at the Site. The impacts of the Madeira vine can be severe enough to cause irreversible damage to ecosystems, including by smothering trees and structures and causing them to collapse. In the absence of the Works, which enable the functional and safe use of the land on which they exist, the Madeira vine could become increasingly unmanageable, including to the extent that the trees and the retaining wall may be overcome and eventually collapse into the Belongil Creek.

14   Through the regularisation of the Works, the Applicant could be appropriately conditioned to undertake necessary maintenance works (weed control, planting and bush land management undertaken by qualified bush regenerator) to manage and control the presence of the Madeira vine and to facilitate the natural regeneration of mangrove vegetation around the structures. The Applicant could also be appropriately conditioned to undertake ongoing maintenance (including but not limited to further control of the presence of the Madeira vine) and/or compensatory planting at the Crown Land allotment adjoining the Site to the northwest (Lot 37 in Section 3 of DP 1623), in order to offset any environmental impacts which may have been caused by the Works.

Planning Outcomes

15   The Works are compatible with surrounding dwellings and the positive characteristics of the existing immediate locality.

16   The Works are in a form which is consistent with and not antipathetic to the applicable planning controls and of a nature that would be approvable when assessed against criteria in section 4.15 of the Act.

17 The Works result in a form and planning outcome which are consistent with and not antipathetic to the aims set out in clause 1.2 of the BLEP 2014 and clause 2 of the BLEP 1988.

18   The ‘jetty’ is expressly a permissible use and structure within the W1 Natural Waterways zone under the BLEP. In that zone, only a handful of uses are permissible, namely:

“Aquaculture; Boat building and repair facilities; Boat launching ramps; Boat sheds; Business identification signs; Charter and tourism boating facilities; Environmental facilities; Flood mitigation works; Jetties; Mooring pens; Moorings; Roads; Water recreation structures; Wharf or boating facilities”.

…

20 The Works are also consistent with and not antipathetic to the aims of W1 - Natural Waterways zone set out in the BLEP Land Use Table and the aims of Zone No 7(f2) – Urban Coastal Land Zone set out in the BLEP 1988 Land Use Table, as set out above in Part A. In particular, as stated above, the proposal has been designed and constructed appropriately such that it will “protect the ecological and scenic values of natural waterways” and will not “have an adverse effect on the natural values of waterways in this zone”. This can be further managed through appropriate conditions of consent. In addition, the jetty will increase opportunities for “recreational fishing” (being an express zone objective). As such, there can be no suggestion that this permissible form of development will be antipathetic to any of the zone objectives.

35. In its Reply to the SOFC filed on 23 August 2019, the Council relevantly contends that:

Works not permissible

1.   The Court should not exercise its discretion to direct the issue of the Building Information Certificate ("BIC") because the works the subject of the BC Application are not permissible under the Marine Estate Management (Management Rules Regulation) 1999 (MEM Rules).

Particulars

a.   Works for the purposes of a jetty, stairs and retaining walls are not one of the matters for which consent may be given under clause 1.11 of the MEM Rules .

b. The consent authority must take into consideration the permissible uses of the Belongil Creek Special Uses Zone when determining a grant of approval to carry out an activity, in a marine park or an application for development that is in the locality of a marine park pursuant to sections 55(3) and 56(2) of the Marine Estate Management Act 2014 ("MEM Act").

c. The consent authority must also take into consideration the objects of the MEM Act the permissible uses of an area when considering an application for development under the Environmental Planning and Assessment Act 1979 ("EP & A Act") on land that is in the locality of a marine park, pursuant to section 56(1) of the MEM Act.

d.   Permissible uses in the Belongil Creek Special Uses Zone are research, environmental protection, public health, traditional use or public safety purposes.

e. Clause 1.11(1) of the MEM Rules requires consent to be given by the Minister for any damage, or interference with, any part of the habitat of a marine park (including soil and sand). Clause 5 of the Marine Estate Management Regulation 2017 ("MEM Regulation") requires that where consent is required for an activity, the consent is to be in accordance with Part 2 of the MEM Regulations.

f. The Minister must have regard to the assessment criteria in deciding whether to grant consent for the carrying out of an activity in a marine park (clause 8(1) of the MEM Regulation). The relevant assessment criteria for consideration include:

i. the objects of the MEM Act

ii.   the purposes of marine parks

iii.   the objects of the zone

iv.   activities that are permissible in the zone

(clause 9 of the MEM Regulation).

Works contrary to the objects of the MEM Act and the Special Uses Zone

2. The Court should not exercise its discretion to direct the issue of the BIC because it seeks to authorise works that are contrary to the objects of the MEM Act and the Special Uses Zone, and that have caused damage to and detrimental impacts upon, habitat and ecological processes in the Cape Byron Marine Park, in the Belongil Creek Special Uses Zone.

Particulars

a.   The BC Application works have caused a detrimental impact upon the natural environment of the marine park and do not provide for the management of biological diversity, habitat, ecological processes and cultural features in the zone (clause 1.10 (a) of the MEM Rules).

b.   The consent authority is required to take into consideration the objects of the Special Uses Zone (in the MEM Rules), as well as the permissible uses of the area, when considering an application for an activity (section 55(3)(a)(i) and (ii))

c.   The BC Application is not for the provision of rehabilitation or traditional use and is contrary to the objects of the Belongil Creek Special Uses Zone (clause 5.12 of the MEM Rules).

d.   The BC Application works have damaged Grey Mangroves, Swamp Oaks and Beach Acronychia and caused damage to the estuary.

Damage to the environment

3.   The Works have caused unacceptable environmental impacts and in those circumstances the Court should not exercise its discretion to direct the issue of a Building Certificate.

Particulars

a.   The Works have interfered with the bank of Belongil Creek. The interference has had or will have the effect of altering drainage patterns, floodwaters, and has impacted upon, and will continue to impact upon, the habitats in Belongil Creek.

b.   The earthworks carried out continue to have impacts upon habitats and ecological processes in Belongil Creek, and have modified the estuary.

c.   The Works carried out have caused and will continue to cause environmental damage.

Contrary to objects of the EP & A Act and W1 – Natural Waterways Zone

4. The Court should not exercise its discretion to direct the issue of a BIC because the Works are contrary to the objects of the EP & A Act, and the objects of the W1- Natural Waterways Zone.

Particulars

a.   The direction to issue a BIC will not:

i.   facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment;

ii.   protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats; or

iii.   promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage);

(see section 1.3 of the EP & A Act)

b.   The direction to issue a BIC will not:

i.   protect the ecological and scenic values of natural waterways;

ii.   prevent development that would have an adverse effect on the natural values of waterways in the zone

because the Works have a detrimental visual impact on the natural waterway, and the Works have caused damage to the environment (see Land Use Table, W1 – Natural Waterways Zone in the Byron Local Environmental Plan 2014).

Owner's consent

5.   The Court should not exercise its discretion to direct the issue of a BIC because an owner of the land on which the Works are erected has not made the application for the BIC.

Particulars

a. The Works have been constructed over Lot 5 in DP 729063 ("Belongil Creek") and Lot 37 in Section 3 of DP 1623 ("Crown Land"). Belongil Creek and Crown Land are owned by the Crown. The Crown has not made a BIC for the Works or consented to the BC Application (section 6.22 of the EP & A Act).

Response to the Applicant's Contentions in its ASOFC

6.   The assessment of structural integrity, BCA compliance and safety and accessibility outcomes are not the only criteria relevant to in assessing whether the BIC should be directed to be issued.

Particulars

a. The Court may have regard to the environmental impacts of the development, the objects of the EP & A Act, and public policy (see Ireland v Cessnock City Council [1999] NSWLEC 153, at [69]), as well as a range of other matters.

7.   The Respondent contends above that the Works have caused environmental damage and will continue to cause environmental damage. The Respondent rejects the Applicants assertions of "positive" or "remedial" environmental impact.

8.   The Respondent does not accept the assertions of fact and evidence set out in the ASOFC in paragraphs 4 to 14 for the following reasons:

a.   The Respondent does not accept that there are environmental impacts associated with the described Right of Way;

b.   To the extent that the Court may find that an environmental impact is caused by the described Right of Way, the environmental damage caused by, and that will continue as a consequence of, the Works, is significant and not mitigated by the Works;

c.   The refusal by the Court to direct the issue of the BIC does not result in the implementation of compensatory measures, or necessarily the removal of the Works, there are various consequences that may flow if the Court does not direct the issue of the BIC. These matters are not relevant considerations in the exercise of the Court's discretion;

d.   The photographs provided do not demonstrate trees along Belongil Creek were 'already dead';

e.   The Works included earthworks, and there are piers that have been installed along the banks of the estuary.

f.   The rationale for the undertaking of the Works is not relevant to the Court's exercise of discretion, the Works carried out have caused damage as contended above;

g.   The removal of the Works is not the direct consequence of the refusal to direct the issue of the BIC, and is not relevant to the exercise of the Court's discretion, and if the Court considers there is some relevance the Respondent asserts that removal can be directed to be carried out in an environmentally sensitive manner to ensure no further detrimental environmental impact occurs;

h.   The issue of the BIC will not require "maintenance" of the Works or permit "remedial control" of the Madeira vine (Anredera cordifolia). A BIC is not a permission to carry out further works, it is merely the certification that the Respondent will not make an order or take proceedings under the EP & A Act or the Local Government Act 1993;

i. The Court does not have power to require the Applicant to undertake maintenance works or manage or control weeds. There is no power under the EP & A Act to issue such conditions in respect of a BIC.

9.   The Respondent does not accept the assertions of fact and evidence set out in the ASOFC in paragraphs 15 – 20 for the following reasons:

a.   The works are contrary to the objectives of the W1 – Natural Waterways Zone;

b.   The Works are contrary to all of the planning controls outlined in the Contentions above;

c. A 'jetty' is not a permissible use pursuant to the MEM Act, MEM Rules and MEM Regulation;

d.   BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 is of limited assistance in this case as it related to a development application, and there was not legislation applicable that had the effect of causing the works proposed to be impermissible;

10. The Respondent does not accept the assertions set out in the ASOFC in paragraphs 21 – 23 and contends that adequate reasons for the refusal of the BC Application were provided. Section 6.25(1) of the EP & A Act expressly refers to a reason for refusal of n application being that there is a matter that would entitle the Respondent to issue an Order. There was no implication that development consent was necessary for the BC Application to be approved.

Public Interest

11. The direction to issue a BIC is not in the public interest and contrary to public policy because there is an overriding public interest in preserving and maintaining the zoning controls and permissible development described in the planning controls of NSW. The Works have caused detrimental environmental impacts on habitats and ecological processes in a marine park, and are contrary to a number of environmental planning instruments, as well as the MEM Act, MEM Rules and MEM Regulation.

Particulars

a.   The Works are designated development pursuant to the SEPP Coastal Management, and a consent authority must not grant consent to works unless it is satisfied that sufficient measures have been, or will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland (clause 10 SEPP Coastal Management).

b.   The Works are not permissible under the MEM Rules and MEM Regulations;

c. The Works do not meet the assessment criteria in clause 9 of the MEM Regulation;

d.   The Works are contrary to the objectives of the Special Purpose Zones, and the Belongil Creek Special Purpose Zone under clauses 1.10 and 5.12 of the MEM Rules;

e.   The Works are contrary to the objectives of the W1 – Natural Waterways Zone; and

f. The works are contrary to the objects of the EP & A Act (section 1.3).

The Power to Hear the Matters Concurrently or Alternatively the Power to Stay the Class 4 Proceedings

Power to Consolidate the Matters

36. The source of the Court’s power to consolidate the matters and to hear them concurrently is contained in r 28.5 of the Uniform Civil Procedure Rules 2005 (“UCPR”):

28.5     Consolidation etc of proceedings

If several proceedings are pending in the court and it appears to the court—

(a)     that they involve a common question, or

(b)    that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or

(c)     that for some other reason it is desirable to make an order under this rule,

the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.

Power to Stay the Class 4 Proceedings Pending the Resolution of the Class 1 Appeals

37. In its written submissions Master Alchemy relied upon s 9.46(3) of the EPAA as a source of the Court’s power to stay the Class 4 civil enforcement claim. That provision provides that:

9.46 Orders of the Court

(3)     Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may—

(a)     adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b)     in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

38. At the hearing of the motions, however, Master Alchemy resiled from this position. It was correct to do so given that there has been no development application made by it, and therefore, the power conferred by that provision had not been enlivened (Diab v Cavasinni [2019] NSWLEC 204 at [12]).

39. Master Alchemy orally submitted that s 9.46 of the EPPA applied “by way of analogy” and that the provision, read together with ss 58(1)(a)(ii) (which mandates that the dictates of justice be followed in any order granting a stay), 56 and 57 of the CPA, and in light of the fact that it was an “established practice” that Class 1 appeals be heard and determined prior to Class 4 proceedings dealing with the same development, compelled the conclusion that the stay should be granted. I do not agree.

The Application for a Stay Must be Refused and the Matters Should be Consolidated

40. As Preston J made plain in Cavasinni, there is no presumption, and in my view no “established practice”, that Class 1 appeals are to be heard before Class 4 civil enforcement proceedings concerning the same impugned development. As his Honour said (at [11]-[13]):

11 First, there is no presumption that Class 4 proceedings, of the kind brought by Mrs Diab, should be adjourned in order for Class 1 proceedings to be heard and determined first. Mr and Mrs Cavasinni relied on s 9.46(3) of the Environmental Planning and Assessment Act 1979. That provision states that where a breach of the Act would not have been committed but for the failure to obtain a development consent, the Court upon application being made by the defendant, may adjourn the proceedings to enable a development application to be made in order to obtain the consent.

12 In this case, the breach alleged by Mrs Diab is not that Mr and Mrs Cavasinni and Cavcorp Australia Pty Limited failed to obtain a development consent, but rather that they carried out development otherwise than in accordance with that consent. Furthermore, the respondents do not seek to make a development application to obtain development consent, but rather have made application to modify the current consent. As a consequence s 9.46(3) does not strictly apply.

13 Nevertheless, I accept that the Court has the power to vacate Class 4 proceedings and adjourn the hearing of those proceedings until after any Class 1 proceedings have been heard and determined. My point is simply that there is no presumption that that course will be adopted in circumstances such as the present case. There is a general power to adjourn proceedings under s 66 of the Civil Procedure Act 2005. It is that power that would be exercised if the orders sought in the notice of motion in this case were to be made.

41. Each application to stay the final hearing of proceedings pending the resolution of related matters turns on its own facts and circumstances.

42. In Attard v Transport for New South Wales [2013] NSWLEC 176 Preston J set out the factors relevant to the exercise of the Court’s discretion under r 28.5 of the UCPR (at [11]):

11 The relevant rule is r 28.5 of the Uniform Civil Procedure Rules 2005. The parties each referred to decisions setting out the relevant factors to be considered. These include:

1.    Are the proceedings broadly of a similar nature?

2.    Are there issues of fact and law common to each proceeding?

3.    Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

4.    Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?

5.    Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?

6.    Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

7.    Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

8.    Is one proceeding further advanced in terms of preparation for trial than the others?

9.    Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

(See: Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11] cited in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [29]. See also Wilson v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 307; (2003) 126 FCR 500 at [46]).

43. That Attard concerned the consolidation of multiple sets of proceedings in Class 3 of the Court’s jurisdiction, rather than the proposed consolidation of a Class 4 matter with two Class 1 matters, with their differing evidential burdens and differing costs regimes, does not make the decision relevantly distinguishable. In my opinion, the principles articulated above remain apposite, although material differences between the nature of the power and manner by which that power is exercised between the various classes of the Court’s jurisdiction is nevertheless a matter that the Court should take into account in the exercise of its discretion whether or not to consolidate the matters.

44. Applying the facts of this case to the factors articulated by the Court in Attard, it is apparent that Master Alchemy’s application must fail whereas the Council’s must succeed. This is because, first, as the pleadings in the Class 4 matter and the contentions raised by the parties in the Class 1 BIC appeal clearly demonstrate, the matters are of a similar nature and concern the same subject-matter, namely, the works. Although the Class 1 BIC appeal has been amended to exclude the works on Crown land, this does not assist Master Alchemy in circumstances where:

1. there is a right of way across Master Alchemy’s land in favour or the Crown;

2. it is difficult to conceive of a scenario where a BIC would be issued in the Class 1 BIC appeal when the works on Master Alchemy’s land form part of the unlawful works on Crown land for which no owner’s consent is given; and

3. in order to give effect to the demolition orders sought by the Council this may necessitate development on the affected Crown land, which may result in further adverse consequences for that land.

45. Second, in light of the concession made by Master Alchemy as to the unlawfulness of the works and the fact that no owner’s consent is forthcoming in respect of the works on the Crown land, the matters concern the same subject-matter and will raise similar, if not identical, issues of fact and law. In particular, the matters will be concerned with whether, and if so by what means, the breach of the EPAA can be remedied having regard to the specific ecological considerations of the lands. It may be assumed that if the Court determines that total demolition of the works is appropriate, then the Class 1 BIC appeal will fail notwithstanding that it has been amended to exclude the works on Crown land.

46. Third, as the unchallenged evidence of Ms Rose indicates, it is likely that the experts required in the Class 1 appeals and the Class 4 civil enforcement claim will be the same: ecological evidence; town planning evidence; and building/engineering evidence. As she deposed, “I expect that they would give similar evidence in both proceedings.”

47. Fourth, there has been no proposal put forward by either party that a test case be heard to determine the common issues of fact and law. This is undoubtedly because once the common issues of fact and law are resolved, little is likely to remain in the matters.

48. Fifth, if the matters are not heard together, then it is possible that a multiplicity of proceedings will result, with the unpalatable potential for conflicting judgments, experts having to give evidence twice in separate proceedings, the duplication of legal costs, and delay in their final determination.

49. Sixth, there will be a substantial savings in time if the proceedings are tried together. Ms Rose estimates that the Class 1 matters are likely to consume 2-3 days of hearing time, which would include a site visit. A similar time estimate is given in relation to the Class 4 claim. More importantly, an identical time estimate was given by Ms Rose, and experienced and competent solicitor, if all of the matters were heard together. Given the likely necessity for a site visit, I consider these times to be underestimates and I would allow an additional day. But even allowing for an additional day of hearing time, consolidation of the matters is likely to save a total of 3-4 days of court time together with attendant legal costs.

50. Seventh, the matters have not developed past the ‘pleadings’ stage. That is, they are all in a nascent stage of preparation, with no evidence having been prepared to date. It is not the case that one matter is further advanced in terms of preparation for hearing than another.

45. Eighth, while there is the potential for a putative party to be inconvenienced if the matters are consolidated, namely, the Minister, who ought, in my opinion, as the entity who refused to grant owner’s consent, to be joined to the Class 4 proceedings, any possible inconvenience may be resolved by joining the Minister to all three proceedings. Counsel for the Council indicated that in informal communications the Minister did not evince an intention to be joined as a party to any of the matters, and thus it may be assumed that the Minister is likely to file a submitting appearance only. Out of abundance of caution given the common issues in dispute in all three matters, and to avoid the inconvenience of the Minister being a party in the Class 4 proceedings but not the Class 1 appeals, in my view, an order ought to be made joining the Minister as a party to all of the matters.

46. Ninth, there is no doubt that difficulties may arise insofar as the Class 1 appeals and the Class 4 civil enforcement claim are subject to differing evidential, procedural, and costs rules. For example, the rules of evidence and the usual rule with respect to costs apply in Class 4 matters but not in Class 1 appeals. It was for this reason that the Court briefly flirted with the idea of hearing the Class 4 matter first and staying the Class 1 appeals, especially as it is difficult to conceive of what could be left of the Class 1 appeals after the determination of the civil enforcement claim. But in case the Class 4 claim might not dispose of all of the issues likely to be raised in the Class 1 appeals, the preferable course is to hear the matters together (that is, the reverse logic applies to that expressed by the Court in Cavasinni at [20]).

47. I do not consider that differing rules of evidence and costs across the various classes of the Court’s jurisdiction is a fatal impediment to consolidation. With respect to the expert evidence to be filed, it may be assumed that in order to conform with the Expert Code of Conduct, irrespective of whether or not the evidence is filed in Class 1 or Class 4, the evidence ought nevertheless meet certain minimum requirements as to its content and the expertise of the person proffering any opinion contained in it, in order for the evidence to be admissible. Alternatively, the Court may simply direct that the rules of evidence apply to all matters. As for costs, these will remain at the discretion of the Court in the Class 4 proceedings (s 98 of the CPA). Submissions may be made to the trial judge hearing the consolidated claims that are sufficiently persuasive that it is appropriate to apply a different costs rule than the usual costs rule in Class 4 matters.

48. It therefore follows that in circumstances where the determination of the ecological impacts resulting from the unlawful works, and how these impacts are to be rectified, raise very similar matters of fact and law in the Class 1 and Class 4 proceedings; where the Class 1 matters will not wholly dispose of the issues for determination in the Class 4 appeal, whereas by reason of the factors to be considered in the exercise of the Court’s discretion in the Class 4 matter, the converse is likely; and where listing the Class 1 appeals first would result in the same experts giving the same evidence in two sets of proceedings and the duplication of legal costs, the most just, quick and cheap exercise of the Court’s discretion (see ss 56-60 of the CPA) is to consolidate the matters and hear all three together before a judge.

Mediation

55. Given that the absence of necessary approval is conceded by Master Alchemy and in light of the fact that owner’s consent is not forthcoming for the works on Crown land, the legal issues to be determined in any consolidated set of proceedings are likely to be significantly confined in scope. Accordingly, the matters essentially concern the scope of the remediation orders sought by the Council and, having regard to expert advice, how to best give effect to those orders. In my opinion, this makes the matters amenable to an order for mediation. As neither party opposed such a course, an order that following consolidation the matters be mediated was made pursuant to s 26 of the CPA

Master Alchemy to Pay the Council’s Costs of the Motions

56. Because these are Class 4 proceedings, as discussed above, costs usually follow the event. Just as Master Alchemy had sought orders for costs payable in its favour if it had enjoyed success on the motions, the Council seeks similar orders. There is no reason why such orders ought not be made.

Orders

57. It was for the reasons above that the Court made the following orders on 20 February 2020 (amended on 24 February 2020 by inserting the correct description of “the Crown” in order 4):

1. the notice of motion filed by Master Alchemy on 2 December 2019 is dismissed;

2. orders are made in accordance with the Council’s notice of motion filed on 12 December 2019, including that all matters (2019/351992, 2019/182379 and 2019/143996) are to be consolidated and heard together before a judge of the Court;

3. Master Alchemy is to pay the Council’s costs of both motions;

4. the Minister for Water, Property and Housing is to be joined as a party in all matters (2019/351992, 2019/182379 and 2019/143996);

5. pursuant to s 26 of the Civil Procedure Act 2005 all matters (2019/351992, 2019/182379 and 2019/143996) are to be mediated before a Commissioner of the Court. Such mediation is to commence on site (site inspection required) and return to a location to be confirmed by the parties when the matter is next before the Registrar;

6. all matters (2019/351992, 2019/182379 and 2019/143996) are to be stood over to the Registrar’s list on 27 February 2020 for the allocation of a mediation date (estimate of two days);

7. all matters (2019/351992, 2019/182379 and 2019/143996) are stood over to the List Judge two weeks after the conclusion of the mediation for the making of any further orders, if necessary; and

8. liberty to restore on two days’ notice.

58. The exhibits are to be returned.

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Decision last updated: 25 February 2020