Carriage v Stockland Development Pty Limited [No 11]

[2005] NSWLEC 455

Land and Environment Court

of New South Wales

CITATION:	Carriage v Stockland Development Pty Limited & Ors [No 11] [2005] NSWLEC 455
PARTIES:	APPLICANT: Allan Carriage FIRST RESPONDENT: Stockland Development Pty Limited
FILE NUMBER(S):	40863 of 2002
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- scope of evidence to be raised in substantive hearing - whether costs order ought be made for expert testing
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 124(2)(c) Land and Environment Court Act 1979 s 23, s 69 National Parks and Wildlife Act 1974 s 90, s 118A(2), s 188D(1) Supreme Court Rules 1970 Pt 25 r 8
CASES CITED:	Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541; Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148; Carriage v Stockland Development Pty Ltd & Ors [No 10] [2005] NSWLEC 272
DATES OF HEARING:	22/08/2005
DATE OF JUDGMENT:	08/22/2005
EX TEMPORE JUDGMENT DATE:	08/22/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr S Docker (barrister) SOLICITORS: Shaw Reynolds FIRST RESPONDENT: Mr M Craig QC SOLICITORS: Baker & McKenzie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

22 August 2005

40863 of 2002 Carriage v Stockland Development Pty Limited & Ors [No 11]

EX TEMPORE JUDGMENT

1 HER HONOUR: The relevant background to these proceedings is set out in Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541 at [5] to [8] as follows:

The Stages 2–6 Consent
On 8 October 2001 this Court granted consent, subject to conditions, to “five integrated development applications to create eighty-nine conventional detached housing allotments, three super allotments for future medium density housing development and three residue lots which are for future development or are zoned open space, lodged in August 2000, for land at Sandon Point described as Lots 3 and 4 in Deposited Plan 99955, Lot 1 in Deposited Plan 365268, part Lot 4 in Deposited Plan 231244, part Lot 2 in Deposited Plan 365268 and Lot 2 in Deposited Plan 588060” ; Stockland Constructors Pty Limited v Wollongong City Council and Anor , 8 October 2001 , unreported , per Watts C, Hussey C. This consent is referred to as the “Stages 2-6 Consent”.

The Stages 2–6 Consent granted approval to, amongst other things, the creation of a lot described as Residue Lot 235, depicted on Plan 31-137-DA2 Revision E dated 5 October 2001, which is one of the plans approved in the Court judgment (“Lot 235”). Lot 235 was created on 16 June 2003 when Deposited Plan 1048602 was registered.

2 In Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148 (“Carriage No 7”) I made the following declarations:

1. Construction Certificates 214/02 and 215/02 issued by the Fifth Respondent to the First Respondent on or about 8 February 2002 are, to the extent that they refer to work relating to that part of Lot 235 DP1048602 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990, invalid.
2. The First Respondent by itself, its servants, agents and contractors has carried out development requiring development consent on that part of Lot 235 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990 without first obtaining a valid development consent in breach of s 76A(1) of the Environmental Planning & Assessment Act 1979.

3 In Carriage v Stockland Development Pty Ltd & Ors [No 10] [2005] NSWLEC 272 (“Carriage No 10”) I dismissed ground 3 of the application that the First Respondent picked or caused damage to an endangered ecological community on land known as “Lot 235” contrary to s 118A(2) and/or s 118D(1) of the National Parks and Wildlife Act 1974 (“the NPW Act”).

4 Following my judgment in Carriage No 10, it is appropriate that I now consider the issues relevant to the possible remediation of the site which would require a substantial amount of fill to be removed from the site. The parties are back before me as they do not agree on the future conduct of this matter. Three issues were raised in argument.

(i) Can harm as a result of the fill be considered?

5 In Carriage No 10 I held that a claim under s 118D(1) the NPW Act, that the fill placed on Lot 235 by the First Respondent was altering the hydrogeology of the area in such a way that harm was being caused to an ecological community known as the Sydney Coastal Estuary Swamp Forest Community (“the SCESFC”), had not been proved by the Applicant, although I did not accept that no harm would be caused as a result of the fill. I also held there was no harm caused to SCESFC on Lot 235 as a result of the placement of the fill on it.

6 As a result of that finding the First Respondent argued that the issue of the likelihood of harm to the environment as a result of the placement of fill could not be revisited in the context of whether remediation orders ought be made under s 124(2)(c) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The only issue to consider is whether there will be harm if the fill is removed.

7 The Applicant disagreed on the basis that the NPW Act proceedings are separate from the EP&A Act part of the proceedings and there is no overlap. The issue in relation to the remediation orders is, therefore, that the impact of not removing the fill ought also be considered in weighing up whether the fill ought be left there.

8 In Carriage No 10 I concluded at [86] that the Applicant had not discharged his onus of proof but that it did not follow that I considered it proved that there was no harm to the SCESFC as a result of the placement of fill on Lot 235. I also commented at [72], [76] and [79] that further data and analysis was needed in order to form a conclusive view about the likelihood of adverse impact on the SCESFC. I do not consider the issue of whether there is or will be harm to the SCESFC as a result of the fill has been resolved by my findings in Carriage No 10 for the purposes of a finding under the EP&A Act as to whether remediation orders for the removal of the fill ought be made. It follows that the parties may bring forward further expert evidence in relation to hydrogeological matters and ecological evidence which relies on that evidence.

(ii) Should the Court order the First Respondent to pay the costs of data collection?

9 The Applicant seeks an order that the First Respondent pay for the installation of piezometers to collect further data on the basis that he cannot afford that cost. Counsel for the Applicant argued that because this is public interest litigation and the Court is not simply resolving issues inter partes it is appropriate that the Court make such orders. The Applicant relies on s 23 and s 69 of the Land and Environment Court Act 1979 and Pt 25 r 8 of the Supreme Court Rules 1970 (adopted in this Court) which provide for orders for access and data collection to be made “on terms”. No specific case in either this Court or the Supreme Court in relation to the making of such interlocutory orders in the absence of the parties consenting to them was identified by the parties. There is no explicit provision for this in any of the Court rules to which I have been referred. I agree with the First Respondent that the orthodox approach to costs is that successful parties are able to recover their costs at the conclusion of litigation, rather than awarding costs to assist a party to bring its case in the course of the proceedings. My understanding from the parties is that the cost of collecting the data in this case would otherwise be shared equally and be available to both parties’ experts.

10 While the relevant costs rule would enable me to make the order sought I do not consider I should exercise my discretion in that way. These are Class 4 proceedings commenced and pursued by the Applicant and it is the responsibility of the Applicant to make his case. I do not find it persuasive on this occasion for the Applicant to say that because the Court has made a declaration that work has been conducted which is illegal, then the Court must facilitate the collection of evidence in the Applicant’s case to determine the impact of that illegal work, by ordering costs in the Applicant’s favour now.

11 I understand that the First Respondent will allow the Applicant’s experts access to its property. I consider a joint report should be prepared by those experts as part of the case preparation.

12 The Applicant wishes to bring forward cultural heritage evidence on the significance of Aboriginal objects located in the fill. It is not immediately clear that such evidence is necessary. I will not rule finally here on whether such evidence can be called, but suggest to the Applicant that if he wishes to call that evidence he must first review the available material already in evidence to determine if in fact there is already sufficient material. Another relevant matter raised by the First Respondent is that removal of the fill would require by a s 90 permit from the National Parks and Wildlife Service (now the Department of Environment and Conservation) as it contains Aboriginal objects. There is the possibility that the current s 90 permit for the whole site may apply. The safekeeping of Aboriginal objects would have been considered in that context by the National Parks and Wildlife Service, the body responsible for administering this aspect of the NPW Act. It is arguably more appropriate that the weighing up of the significance of Aboriginal objects and their safekeeping take place in that context. All these matters should be investigated further before more evidence is prepared in these proceedings on this issue.

Orders

13 The Court makes the following orders:

1. That the parties file appropriate short minutes of order reflecting my findings in this judgment on or before 12.00 pm on Friday 26 August 2005.

2. That costs be reserved.