Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd

[2014] NSWLEC 31

Land and Environment Court

New South Wales

Medium Neutral Citation:

Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd [2014] NSWLEC 31

Hearing dates:

3 April 2014

Decision date:

04 April 2014

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [26].

Catchwords:

PRACTICE AND PROCEDURE: application for expedition - applicable legal principles - expedition granted.

Legislation Cited:

Aboriginal Land Rights Act 1983

Environmental Planning and Assessment Act 1979, ss 89C, 89D, 89E

Environmental Planning and Assessment Regulation 2000, cl 49

Cases Cited:

Healthscope Limited v Minister for Planning and Infrastructure (No 2) [2011] NSWLEC 237

Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146; (2013) 197 LGERA 238

Moorebank Recyclers Pty Ltd v Liverpool City Council [2013] NSWLEC 33

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122

Xiang Rong Investments Pty Ltd v Ku-ring-gai Municipal Council [2013] NSWLEC 44

Category:

Interlocutory applications

Parties:

Darkinjung Local Aboriginal Land Council (Applicant)
Wyong Coal Pty Ltd (First Respondent)
Minister for Planning and Infrastructure (Second Respondent)
Planning Assessment Commission NSW (Third Respondent)
NSW Aboriginal Land Council (Fourth Respondent)

Representation:

J Kirk SC with P Herzfeld (Applicant)
Z Heger (First Respondent)
A Shearer (Second and Third Respondents)
P Bertram (Fourth Respondent)
Chalk & Fitzgerald (Applicant)
Ashurst (First Respondent)
New South Wales Planning and Infrastructure (Second and Third Respondents)
New South Wales Aboriginal Land Council (Fourth Respondent)

File Number(s):

40189 of 2014

EX TEMPORE Judgment

The Parties Jointly Seek Expedition

1. This is an application by the first respondent, Wyong Coal Pty Limited trading as Wyong Areas Coal Joint Venture ("Wyong Coal"), by way of notice of motion filed on 27 March 2014, for expedition of Class 4 proceedings filed in the Court on the same day.

1. All parties supported the grant of expedition. Given the circumstances of the application, their consent was understandable and I made the orders sought by them on the day the application was heard, 3 April 2014. However, due to other duty judge matters that day, I was unable to deliver my reasons until today.

Wyong Coal Makes a State Significant Development Application for Wallarah 2 Coal Project

1. The Class 4 proceedings concern a development application ("the DA") lodged with the second respondent, the Minister for Planning and Infrastructure ("the Minister) by Wyong Coal, for the proposed Wallarah 2 Coal Project ("the project"). The DA is for "State significant development" as that category is defined in s 89C of the Environmental Planning and Assessment Act 1979 ("the EPAA") on the basis that it is "development for the purposes of coal mining".

1. Wyong Coal are not, however, the owners of the land the subject of the DA. Rather, the DA partially covers land owned by the applicant, the Darkinjung Local Aboriginal Land Council ("Darkinjung"). Moreover, the DA partially covers land over which a land rights claim has been made by Darkinjung under the Aboriginal Land Rights Act 1983.

1. Clause 49 of the Environmental Planning and Assessment Regulation 2000 ("the Regulations") relevantly provides as follows:

49 Persons who can make development applications

(1) A development application may be made:

(a) by the owner of the land to which the development application relates, or

(b) by any other person, with the consent in writing of the owner of that land.

(2) Subclause (1) (b) does not require the consent in writing of the owner of the land for a development application made by a public authority or for a development application for public notification development if the applicant instead gives notice of the application:

(a) by written notice to the owner of the land before the application is made, or

(b) by advertisement published in a newspaper circulating in the area in which the development is to be carried out no later than 14 days after the application is made.

...

(3A) Despite subclause (1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the New South Wales Aboriginal Land Council.

...

(5) In this clause:

...

public notification development means:

(i) State significant development set out in clause 5 (Mining) or 6 (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 but it does not include development to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974, or

(ii) State significant development on land with multiple owners designated by the Director-General for the purposes of this clause by notice in writing to the applicant for the State significant development.

1. Neither Darkinjung nor the New South Wales Aboriginal Land Council ("the NSW ALC") have consented to the making of the DA over the Darkinjung land. It is not in issue that the development constitutes "public notification development" for the purpose of cl 49(2) of the Regulations. It is also not a matter of dispute that the requirements of cl 49(2) have been met.

1. Pursuant to ss 89D and 89E of the EPAA, the Minister is the consent authority for the DA. The Minister has delegated this power to the third respondent, the Planning and Assessment Commission of New South Wales ("the PAC").

1. On 16 January 2014, the Minister requested the PAC to carry out a review of the project.

1. The DA has been the subject of a Preliminary Assessment by the NSW Department of Planning and Infrastructure ("the Department"). That assessment is in the form of the Director-General's Environmental Assessment Report ("EAR") dated February 2014 (attached to the DA and exhibited to the affidavit of Mr Andrew Chalk sworn 27 March 2014, the legal representative for Darkinjung).

1. The EAR states as follows:

The Wyong Areas Coal Joint Venture (WACJV) proposes to develop the Wallarah 2 Coal Project, a new underground coal mine, located west of Wyong on the Central Coast, approximately 100 kilometres north of Sydney. The project involves the extraction of up to 5 million tonnes of coal per annum over a 28-year project life using longwall mining methods. Only minimal processing of the coal would occur on-site before transport to the Port of Newcastle by rail for export. The project has a capital investment of approximately $805 million, and would employ 450 people during construction and 300 during operation.

The proposed development is State Significant Development under Section 89C of the Environmental Planning & Assessment Act 1979 (EP&A Act) as it is 'development for the purposes of coal mining', as specified in the State Environmental Planning Policy (State and Regional Development) 2011. The Minister for Planning and Infrastructure is the consent authority for the project. However, the Planning Assessment Commission (PAC) will determine the application under delegation. In addition to approval under NSW legislation, the project is also a controlled action requiring assessment and approval under the Commonwealth's Environment Protection and Biodiversity Conservation Act 1999. The Commonwealth will undertake a separate assessment and determination under its legislation.

1. The EAR further states that:

The proposed development seeks to extract up to 125 million tonnes of high-grade, export quality thermal coal. The Department considers this to be a very significant coal resource, and notes that thermal coal remains a highly sought-after energy source in the Asian markets, particularly the North Asian markets of Korea, China and Japan. The Department considers that extraction of a coal resource of this size and significance would result in a range of very significant economic benefits to the Wyong LGA, the Central Coast region, the State of NSW and to Australia. The project would have direct economic benefits to the State, including $134 million in taxes and $207 million in mining royalties over the life of the project. The project would also generate approximately 800 jobs, which would be a significant boost to both the Wyong LGA and the Central Coast region, which have relatively high unemployment levels compared to the rest of NSW. These are significant benefits, which must be given significant weight in assessing the project's overall merits.

1. It is the Department's opinion as expressed in the EAR that the project is in the public interest. Thus on 7 February 2014, it concluded that the project should be approved subject to recommended conditions.

1. A public hearing in respect of the project was held on 2 April 2014.

1. The EAR states that once the Department receives the PAC's report on its EAR, the Department will finalise its assessment of the merits of the project and refer the project application to the PAC for final determination.

1. Counsel for the PAC informed the Court that although its report was likely to be finalised by mid May, at least two further steps were required before any decision on whether or not to approve the project could be made (a further report by the Department and the PAC's further consideration of this further report). Accordingly, while a decision could conceivably be made as early as the end of May, it was more likely that the final determination of the DA would be made sometime in mid June.

1. According to the affidavit of Mr Mark Brennan, the legal representative for Wyong Coal, the project would, if approved:

a. be a substantial new underground coal mine, using the longwall method of coal extraction;

b. involve the extraction of up to 5 million tonnes of coal each year;

c. have a project life of 28 years, including three years of construction and 25 years of operations;

d. provide direct employment for 450 persons during construction and approximately 300 persons during operations;

e. involve a capital investment of $805 million; and

f. generate $207 million in royalties and $134 million in taxes for the State.

Legal Issue to be Resolved is Confined

1. The determinative legal issue for resolution in the Class 4 proceedings is whether or not pursuant to cl 49 of the Regulations, Darkinjung and/or the NSW ALC must give their consent to the DA for the DA to have been validly made for the purposes of the EPAA. Wyong Coal's position is that no such consent is necessary in light of cl 49(2), the requirements of which have been met. The question therefore turns on the proper construction of cl 49. It is necessarily confined in ambit, although its narrow scope belies the complexity of the interpretative task.

Applicable Legal Principles in Granting Expedition

1. Consideration of the principles applicable to any application for a grant of expedition may be found in Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122 (at [35]-[37], quoted in Healthscope Limited v Minister for Planning and Infrastructure (No 2) [2011] NSWLEC 237 at [8] and cited recently in Xiang Rong Investments Pty Ltd v Ku-ring-gai Municipal Council [2013] NSWLEC 44 at [14] and Moorebank Recyclers Pty Ltd v Liverpool City Council [2013] NSWLEC 33 at [25]):

35 There is no specific power dealing with expedition in either the Civil Procedure Act 2005 ("CPA"), the Uniform Civil Procedure Rules 2005 ("UCPR") (other than in the Court of Appeal: see r 51.60 of the UCPR), the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007. It therefore appears that the power of this Court to grant expedition is found in s 61 of the CPA and r 2.1 of the UCPR. The former provision enables the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, and the latter rule enables the Court, at any time, to give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. Both compliment the provisions contained in ss 56-58 and ss 61-63 of the CPA.

36 In Vaughan v Dawson [2005] NSWSC 33 Campbell J quoted (at [8]) the following passage from Greetings Oxford Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 (at 42-43 per Young J):

8 In Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43 Young J said:

"...when considering whether to expedite proceedings in this Division there are at least six factors which are taken into account.

These are:

(1) Is this the appropriate Court for the litigation, in particular:

(a) does the litigation fall into the work normally done by this Court; and

(b) is there a sufficient nexus with New South Wales.

(2) Is there a special factor involved which warrants expedition. Usually these factors will be:

(a) the loss of witnesses if the case is not fixed at an early date;

(b) matters of public importance;

(c) that the subject matter of the litigation will be lost if it is not heard quickly;

(d) that the litigation to date has been delayed through no fault of the applicant;

(e) that the applicant is suffering hardship not caused through his own fault;

(f) hat there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date);

(g) the nature of the case (for example, ejectment, child custody); and

(h) that there are large sums of money involved.

There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings.

(3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed?

(4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted.

Then there are two factors dealing with the exigencies of the list, viz:

(5) Any application for expedition must be judged in the light of the number of other cases of equal or higher priority that also seek an expedited hearing.

(6) Any "right" to expedition is a right to have the case fixed on one occasion. If, after a date has been fixed, it has to be vacated, it is difficult indeed to justify again expediting the proceedings: Ron Hodgson Cabramatta Pty Ltd v Wewoka Pty Ltd t/as B P Cabramatta Motors (Waddell CJ in Equity, 30 March 1989, unreported).

The question here is whether there is a seventh guideline, namely, that one should not expedite a case where the chances of the applicant for expedition securing what it wants in the proceedings are not high. This point arises because the defendant submits that because of the matters I have already canvassed, the chances of the plaintiff obtaining equitable relief must, according to the defendant, be slim.

I do not think that the Court, ought in an application for expedition, to make an assessment of the applicant's chances of success. However, I do agree that there is a seventh guideline, namely, that the Court should not expedite a case if it considers that in all the circumstances the chances of the applicant obtaining what it seeks in the litigation cannot be put as higher than speculative."

37 It was the opinion of Campbell J that these principles remained applicable (at [8]). I agree with his Honour's assessment.

Parties' Reasons for Seeking Expedition

1. The reasons proffered by the parties for seeking expedition may be characterised as a desire to avoid, or at the very least mitigate, any uncertainty over the validity of the DA. This uncertainty is manifested principally in two ways.

1. First, Wyong Coal was understandably concerned about delay in the approval process, which would in turn cause uncertainty as to the status of the project, with adverse financial consequences.

1. Second, on the state of the present law, even if the making of the DA is not authorised under the Regulations by reason of the absence of Darkinjung's or the NSW ALC's consent, this may not result in the invalidity of the DA (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). The concern arises from comments made by the Court in Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146; (2013) 197 LGERA 238, where it was said (at [46] - [47]):

46 In a number of decisions given by this Court, it has been held that notwithstanding the failure to lodge the consent of the owner of land at the time of making the development application, that failure can be rectified at any time prior to determination of the application by the consent authority, including determination on appeal to this Court under s 97 of the EPA Act. A number of those decisions were cited, without dissent, by Stein JA in Remath Investments at [5]-[7]. The later decision of Pearlman J in Rose Bay Marina Pty Ltd v Minister for Urban Affairs & Planning (2002) 122 LGERA 255 at [24] is to similar effect.

47 Implicit in that line of authority is the proposition that the absence of the document evidencing the land owner's consent, as a document required to be contained in or with the development application, did not deny the existence of the application as a "development application" within the meaning of the EPA Act nor deny the jurisdiction of the Court to entertain an appeal under s 97 when the land owner's consent had not been provided at the time at which the appeal to this Court was commenced. While some of the authorities cited involved challenges to the power of a council, as the consent authority, to process and determine an application when the land owner's consent had not accompanied the development application as lodged, other decisions did involve the determination by the Court that the proceedings before it by way of appeal under s 97 could proceed, notwithstanding the absence of land owner's consent when the appeal was instituted (see, for example, the decision of Hemmings J in Amacon Pty Ltd v Concord Municipal Council (unreported, Land & Environment Ct, NSW, 2 December 1987), cited by Stein JA at [6] in Remath Investments.

1. These observations, Darkinjung submitted, suggest that even non-compliance with cl 49 of the Regulations may not deny the existence of the DA for the purpose of engaging the EPAA.

1. Resolution of the uncertainty was said to be urgent because a decision of the PAC is imminent. Although counsel for the PAC stated that no decision was likely until mid June, it was nevertheless conceded that the timing of any final decision was ultimately not known and could be much sooner than this estimate. Moreover, if the controversy is not resolved before the DA comes before the PAC for final determination, it may be necessary for Darkinjung to seek an interlocutory injunction to restrain the making of the determination. One potential impediment to this course would, however, be the need to proffer an undertaking as to damages, which, given the size of the project, would be substantial. Understandably, Darkinjung does not want to be exposed to this liability.

Expedition Should be Granted

1. In my opinion, these reasons all militate strongly in favour of granting expedition.

1. In addition, applying the principles distilled from the case law as set out above to the facts of the present application, there is a clearly demonstrated need for the proceedings to be expedited. This is because:

(a)   Wyong Coal has proceeded with the application for expedition without delay;

(b)   the application enjoys the unqualified support of all parties;

(c)   although the subject matter of the proceedings will not be lost if the proceedings are not expedited, delay in the determination of the DA will result in Wyong Coal incurring unnecessary financial costs and Darkinjung possibly being exposed to unnecessary financial liability;

(d)   not granting expedition could result in a multiplicity of interlocutory litigation, for example, by Darkinjung having to seek interlocutory relief against Wyong Coal, the Minister or the PAC;

(e)   the expeditious determination of the DA is a matter of public importance, especially given:

(i)   approval, the size of the project, the projected income it will generate and the job opportunities it is estimated will be created; and

(ii)   the direct effect the development will have on the lands owned by Darkinjung and their claim under the Aboriginal Land Rights Act;

(f)   the hearing of the proceedings is estimated to take no more than half to one day. The legal issue the subject of the proceedings is discrete and the only evidence required is documentary, and will be in short compass. The parties have readily agreed to a timetable for the preparation of the proceedings that will ensure its efficient conduct;

(g)   it cannot be said that the chances of Darkinjung succeeding in having the DA declared invalid are in any way "speculative"; and

(h)   the Court has the resources to accommodate an expedited hearing.

Orders

1. The orders of the Court are therefore as follows:

(1)   the respondents are to file and serve their points of defence by 4pm on 7 April 2014;

(2)   the respondents are to notify the applicant of any documents that they wish to have included in the tender bundle in addition to those in exhibit 'AC1' to the affidavit of Andrew John Chalk sworn 27 March 2014, by 4pm on 7 April 2014;

(3)   the applicant is to file and serve by 4pm on 9 April 2014:

(a)   a paginated tender bundle consisting of the documents in exhibit 'AC1' to the affidavit of Andrew John Chalk sworn 27 March 2014, any documents notified by the respondents for inclusion in the tender bundle and any further documents that the applicant wishes to have included in the bundle; and

(b)   a statement of facts agreed between the parties;

(4)   the applicant is to file and serve written submissions not exceeding 10 pages in length by 4pm on 9 April 2014;

(5)   the fourth respondent is to file and serve written submissions not exceeding 10 pages in length by 12pm on 11 April 2014;

(6)   the first, second and third respondents are to file and serve written submissions not exceeding 10 pages in length by 4pm on 14 April 2014;

(7)   the applicant is to file and serve any written submissions in reply not exceeding 5 pages in length by 12pm on 16 April 2014;

(8)   the matter is listed for final hearing on 17 April 2014 at 10am for no more than one day; and

(9)   liberty to restore to the parties on 24 hours' notice.

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Decision last updated: 04 April 2014