Commonwealth of Australia v Randwick City Council
[2000] NSWLEC 123
•06/16/2000
Land and Environment Court
of New South Wales
CITATION: Commonwealth of Australia v Randwick City Council [2000] NSWLEC 123 PARTIES: APPLICANT:
Commonwealth of Australia
RESPONDENT:
Randwick City CouncilFILE NUMBER(S): 10072 of 2000; 10073 of 2000 CORAM: Talbot J KEY ISSUES: Practice & Procedure :- application for a stay of hearing of appeal pending approval of other works
Development Application :- whether can be determined prior to approval or environmental assessment of inherently related worksLEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5(a)(ii), s 79C(1)(b), s 80(3), s 96
Environmental Planning and Assessment Regulation 1994
Land and Environment Court Rules 1996 Pt 12 r 1
Supreme Court Rules 1970 Pt 13 Div 2 r 5
Environment Protection (Impact of Proposals) Act 1974 (Cth)CASES CITED: Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400;
Jago v District Court of New South Wales (1989) 168 CLR 23;
King v Great Lakes Shire Council (1986) 58 LGRA 366;
Milson Gardens Pty Ltd v North Sydney Municipal Council (1963) 9 LGRA 308;
TH and MV Lyne and Wakana Pty Ltd v Moree Plains Shire Council [1999] NSWLEC 240DATES OF HEARING: 07/06/2000, 08/06/2000, 09/06/2000 DATE OF JUDGMENT:
06/16/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr J E Robson (Barrister)
SOLICITORS:
Minter Ellison
Mr W R Davison SC with Mr D R Parry (Barrister)
SOLICITORS:
Bowen & Gerathy
JUDGMENT:
IN THE LAND AND Matter No. 10072-3 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 16 June, 2000
Introduction
1. By notice of motion the respondent council moves the Court for orders that the hearing of proceedings No 10072 of 2000 and 10073 of 2000 be stayed until the making of a development application to the respondent seeking approval to other works, which for convenience can be referred to as “the Commonwealth works”.
2. Stated generally, the grounds for the stay are that the normal and logical order of events is for development consent to be sought and obtained in respect of the Commonwealth works prior to the assessment and determination of the development applications the subject of the present appeals. Alternatively, a development application for the Commonwealth works should be made to the respondent and assessed in conjunction with the subject application.
3. The council contends that it is not possible for the Court to assess the subject applications and the impacts thereof without knowing the precise terms of and sequencing in which the Commonwealth works will take place; the impacts of the Commonwealth works and the cumulative impacts of the Commonwealth works and the works the subject of the development applications. Furthermore, if the Commonwealth works do not take place in precisely the terms and sequence proposed by the applicant then the assumptions made for the purpose of assessing the subject development applications will not be fulfilled and it will be necessary to reassess the development applications either following an application made pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) for modification or a fresh development consent granted pursuant to a further development application.
4. It is also the council’s concern that the completion of the Commonwealth works may be the subject of a conditional development consent which has the effect of changing the works in some material respect. On the other hand, if development consent is not required, changes could be made as the consequence of procedures undertaken in accordance with the Commonwealth legislation, the Environment Protection (Impact of Proposals) Act 1974 (“the Commonwealth Act”).
5. Finally, the council claims that in the absence of the information regarding the precise terms of and sequencing of the Commonwealth works and the impacts thereof, the council will be unable to fully and meaningly adduce evidence, test the evidence adduced by the applicant and make submissions in relation to the subject matter of the appeal.
6. The respondent council has commenced class 4 proceedings for declaratory and injunctive relief against the Commonwealth, alleging that development consent under the EP&A Act is required in respect of the Commonwealth works. Although the Commonwealth has not entered an appearance, Points of Claim and an affidavit constituting the council’s evidence in chief have been filed and served.
The proposal
7. A seven lot subdivision of the site owned by the Commonwealth Government in Bundock Street, Randwick has been registered as DP 10096600. The two development applications before the Court relate to lots 2 and 3 respectively. The total site, which has an area of 68.6 ha, is referred to as “the Defence land”.
8. Under the two development applications the applicant proposes to subdivide lots 2 and 3, the combined area of which is 36.12 ha, into 661 residential allotments. The proposed subdivision is to take place in association with works extending over the whole of the Defence land. The associated works are the Commonwealth works. Part of the Commonwealth works must be completed before the works which are the subject of these applications can proceed. However, the Commonwealth works do not form part of the applications.
9. The development applications are only in respect of lots 2 and 3. They are accompanied by Statements of Environmental Effects (“the SEEs”). The SEEs relate to the works to be carried out on lots 2 and 3 as well as to the Commonwealth works to be carried out on the whole of the Defence land.
10. The applicant’s case is that if development consents are granted they should include conditions which require parts of the Commonwealth works to be completed before the subdivision works are undertaken. Other parts are to be carried out within three years of the completion of the subdivision.
The Commonwealth works
12. The following is a broad description of the Commonwealth works:-11. The Commonwealth works may be generally described as works either preliminary to, or associated with, the subdivision proposed on lots 2 and 3. The works will take place on six of the seven lots in DP 10096600. Lot 4 will be retained for army housing.
- _ Demolition of existing buildings on lots 2, 3, 5 and 7.
_ Earthworks on lots 2, 3, 5 and 7 to create the surface levels shown in the SEEs attached to the applications. It is not clear at this point whether earthworks are proposed on lot 6.
_ Utility works on lots 1, 2, 3 and 6.
_ Remediation of contaminated land on lots 2, 3, 5 and 7.
_ Use of a wetland on lot 6 as a stormwater detention basin.
_ Use of an oval on lot 1 to serve as a stormwater detention basin.
_ Landscaping on lots 6 and 7 to create a park.
The council’s complaints
(a) Inaccurate definition of the Commonwealth works
13. The council contends that the “end state” of the Commonwealth works is not described in the SEEs with sufficient accuracy to allow a condition to be imposed requiring those works to be complete before the subdivision of lots 2 and 3 proceeds.
14. To support its case, the council relies on the evidence of Clare Brown, a consultant planner. She told the Court that there is an inconsistency between a statement in the SEEs that the existing levels on lot 6 will not be changed and a plan showing proposed contours which are different from the contours on the latest survey plan.
(b) Lack of information on the process of executing the Commonwealth works
15. The council contends that even if the SEEs are accurate in describing the “end state” of the Commonwealth works, they are deficient because they do not describe the process by which the end state is to be achieved. In particular, the SEEs describe the standard to which the site is to be remediated without giving particulars of the method by which that standard is to be achieved. In the council’s submission, the method of remediation, such as whether it takes place on or off the site, determines its impact. Hence the court is not able to assess the environmental impact of works which are essential to the carrying out of the subdivision.
(c) Likelihood of changes to the works described as Commonwealth works
16. Irrespective of whether the Commonwealth works proceed following development consent granted pursuant to the EP&A Act or in accordance with the Commonwealth legislation, the council contends that it is inevitable that changes will occur either as part of the approval process or as a consequence of practical considerations that will arise in the course of the execution of the Commonwealth works.
17. Here again, because the starting point for the works the subject of the applications for development consent cannot be established until the contingency of the completion of the Commonwealth works occurs, the assessment and consideration of the subject proposals must be undertaken upon the basis of assumptions that cannot be properly tested.
(d) Generally
18. It will create undue hardship for the council to expend its resources on professional advice and expertise in respect of the assessment of major development proposals which to a large extent are hypothetical because they are dependent upon completion of works that are not sufficiently specified or complete.
19. One estimate is that the hearing of the appeals will extend over six weeks.
20. The evidence from council’s experts reflects a frustration that they will not be able to address the environmental impact of carrying out the Commonwealth works before the subject development applications are determined.
21. They say the Commonwealth works are “essential and preliminary” to the carrying out of the Banksia Grove Residential Subdivision Development proposed in the development applications before the Court. The Commonwealth works are “inherently related” to the proposed development and “necessarily preparatory works to enable the residential subdivision to occur”.
The power of the Court to order a stay of proceedings
22. Part 12 r 1 of the Land and Environment Court Rules (“the Rules”) provides that at any stage of the proceedings, the Court may, on terms, order that the proceedings be stayed. This rule reflects the inherent power of the Court to stay proceedings which are frivolous, vexatious or otherwise an abuse of the process of the Court.
23. In addition, Div 2 of Pt 13 of the Supreme Court Rules applies in this Court. Pursuant to r 5, the Court may order that proceedings be stayed where no reasonable cause of action is disclosed; the proceedings are frivolous or vexatious; or the proceedings are an abuse of the process of the Court.
24. The power of the Court to order a stay is, of course, discretionary.
26. In Jagov District Court of New South Wales (1989) 168 CLR 23 at 74, after reflecting on the power of a Court to control its own process, Gaudron J said:-25. It is part of the inherent power or implied power of the Court to control its own process and proceedings according to the demands of justice as they arise from time to time.
The above general considerations lead me to think that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand.The terms “frivolous”, “vexatious” and “oppressive”, when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process such that, in the interests of the administration of justice, they should attract the grant of a permanent stay. But the terms “vexatious” and “oppressive” may also import a consideration of the justice or fairness of the proceeding, those terms signifying, in appropriate context, proceedings which are “seriously and unfairly burdensome, prejudicial or damaging” or are “productive of serious and unjustified trouble and harassment”: Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197 at 247.
27. The observations of Gaudron J are a useful guide to the way in which the Court should exercise its discretion after having regard to the facts and circumstances of the present case.
Whether a stay should be granted
28. The applicant contends that the assessment of the manner in which the Commonwealth works are to be carried out (as distinct from the condition of the land after they have been carried out) has, and can have, no relevance to the issue of whether sufficient information has been provided in relation to the Commonwealth works to enable the class 1 appeal to be fixed for hearing.
29. The council’s response is that in the absence of the information which its experts, particularly Dr Clements, the council’s consultant plant ecologist, Mr Flanigan, a council engineer, and Clare Brown, say is necessary the Court will be denied the essential “baseline” against which it is required by the legislation to assess the environmental impacts of the residential development.
30. The Commonwealth case is simple, namely, that all the Court requires is an understanding of the condition of lots 2 and 3 following the completion of the Commonwealth works. How the Commonwealth works are to be carried out and any environmental impact that arises as a consequence is irrelevant to the determination of the subject development applications. However, given its status as a party to the proceedings and given its real and legitimate interest in the outcome, the council says the hearing of the appeals in the present circumstances would be, relevantly, seriously and unfairly burdensome, prejudicial or damaging to the council itself and the community which it represents.
31. The applicant’s response is that the council’s argument confuses, on the one hand, a desire to assess the manner in which the Commonwealth works are to be carried out, and, on the other hand, a legitimate need to understand or appreciate the condition of the Defence land following the completion of the Commonwealth works.
32. Although it has been necessary to correct certain errors and descriptions in the SEEs lodged in support of the development application, none of these, according to the applicant, are significant in the context of the present argument.
33. The only aspect of the Commonwealth works which the applicant recognises could reasonably give rise to any concern that sequencing of the Commonwealth works will affect the applicant’s ability to carry out the proposed residential development is that which relates to the provision of stormwater drainage infrastructure. Notwithstanding this prospect it says this issue can be resolved by the grant of development consent subject to a condition that no construction certificate is to be issued until appropriate arrangements to ensure proper stormwater drainage provision have been made. It is submitted that however the drainage occurs the impact upon the residents of adjoining areas to the south will be no different.
34. The applicant says further that because no development consent is being sought in respect of the Commonwealth works, the assessment of the manner in which the Commonwealth works are to be carried out is entirely irrelevant to the application presently before the Court.
35. The applicant relies on the detailed evidence already before the Court in relation to each of the six elements of the Commonwealth works to show that there is sufficient information available to enable a full and proper assessment to be made in relation to the development application. The Court has evidence from Neil Ingham, town planner, Brian Wilson, an ecological consultant who has assessed the flora and fauna impact of the proposed development, James Mitchell, engineer and Daniel Brindle, town planner, who all agree that within their respective expertise the information contained in the SEEs is sufficient to identify the condition of the Defence land following completion of the Commonwealth works and to enable the residential subdivision proposal to be properly assessed.
36. Finally, in relation to the utility argument, the applicant submits that the need to carry out certain work on or off the subject land before the developments which are the subject of the development applications can be carried out has never been a reason to disentitle an applicant from procuring a determination by the Court of a development application. Furthermore, the prospect that a further approval may be required before the Commonwealth works can be carried out should not be a reason to disentitle the applicant from a determination of the development applications: Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400; King v Great Lakes Shire Council (1986) 58 LGRA 366; TH and MV Lyne and Wakana Pty Ltd v Moree Plains Shire Council [1999] NSWLEC 240.
37. I accept the applicant’s submission that the development application can be considered notwithstanding that the Commonwealth works may require a separate approval or assessment before the proposed subdivision can be carried out.
38. That nevertheless leaves the question as to whether the Court should, in the circumstances of this case, exercise its discretion to relieve the council and the Court of the alleged burden of considering the development applications at this stage at least until the elements of perceived uncertainty associated with the Commonwealth works have been clarified.
39. Mr Davison SC reminds the Court that s 5(a)(ii) and s 79C(1)(b) of the EP&A Act, in particular, place a significant burden upon the consent authority to take into consideration the likely impacts of development and to encourage the promotion and coordination of the orderly and economic use and development of land. He says it is not possible to confine the assessment of the impacts of the proposal the subject of the development applications by limiting the consideration to lots 2 and 3. In the absence of an evaluation of the Commonwealth works, Mr Davison argues there will be no ability to assess the risks of achieving the results after the assessment process. He relies on errors and anomalies already identified from the material in the SEEs to show that the council is faced with a formidable task in seeking to understand the extent, sequencing and result of the Commonwealth works before it is entitled to make the assumptions necessary to meet the applicant’s case.
40. The administrative procedures required under the Commonwealth Act have commenced in relation to the Commonwealth works. Pursuant to these procedures, the minister for the time being administering the Act is required to make comments, suggestions or recommendations concerning the proposed action including suggestions or recommendations concerning conditions to which the proposed actions should be subject for the protection of the environment. If the outcome of the class 4 proceedings commenced by the council, whereby it seeks orders requiring the applicant to obtain development consent under the EP&A Act before proceeding with the Commonwealth works, results in an application being made pursuant to the EP&A Act, the imposition of conditions is again a possible outcome.
41. In the Court’s opinion it is not necessary to second guess the conditions under which the Commonwealth works may be undertaken before the present development applications can be determined. Provided it is ultimately shown that the Commonwealth works have been specified with sufficient particularity for the Court to understand the proposed finished state, the impact of the residential subdivision development can be understood, considered and assessed on the assumption that the Commonwealth works will occur. The deferred commencement provisions of the EP&A Act found in s 80(3) and the Regulations contemplate that a development consent may be granted subject to a condition that the consent is not to operate until the Commonwealth works have been completed in accordance with the specification given to the Court.
42. Even though the issues may be complex and involve expert evidence in respect of a wide range of issues, that in itself is not sufficient ground to stay the appeal hearings.
43. The Court is satisfied that there is sufficient certainty about the nature and extent of the Commonwealth works for the development applications to be assessed. That view is reached on the basis of the evidence as it now stands. It nevertheless may be refuted in due course. That is a matter for the hearing.
44. Although the applicant may not be able to act on the development consents if granted, in due course that prospect is not so certain as to justify a stay until the Commonwealth works are determined following the appropriate due process of environmental assessment. Furthermore, there is nothing before the Court to support the suggestion that any changes which may be wrought by the ultimate environmental assessment of the Commonwealth works inevitably will be so radical that the prospect of undertaking the whole works in a way compatible with the development proposals must be written off at this stage.
45. Although the Commonwealth works are inherently related to the proposed development, they are not part of the proposal. Arguably, they may not be undertaken in the manner described in the SEEs, or at all, if the development consents are not obtained.
46. Obviously it is conceivable that the Commonwealth works may not be approved or authorised under either the State or Commonwealth regime, but there is no real suggestion that they cannot be eventually legitimised following a rigorous environmental assessment process albeit with modifications.
47. It cannot be said that the proceedings should be stayed on the basis that it is plain and obvious the appeals cannot succeed.
48. There has been no disentitling conduct on the applicant’s part. Nor is there present in this case the type of normal and logical order of events which Hardie J identified in Milson Gardens Pty Ltd v North Sydney Municipal Council (1963) 9 LGRA 308 at 312 when considering whether a building approval should be refused in circumstances where a required development consent had not been obtained.
49. Accordingly, the Court accepts that the applicant should be allowed to proceed with the appeals.
50. The notice of motion dated 5 April 2000 is dismissed.
51. The exhibits may be returned.
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