David McElhone v Coordinated Logistics Pty Ltd

[2023] NSWLEC 90

Land and Environment Court

New South Wales

Medium Neutral Citation:

David McElhone v Coordinated Logistics Pty Ltd and Ors [2023] NSWLEC 90

Hearing dates:

21 July 2023

Date of orders:

24 July 2023

Decision date:

24 July 2023

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [35]

Catchwords:

PRACTICE AND PROCEDURE — Notice of motion to further amend an amended application — Where amendment not prejudicial to respondents — Notice of motion granted

Legislation Cited:

Civil Procedure Act2005 (NSW)

Environmental Planning and Assessment Act 1979 (NSW), s 4.15

Kiama Development Control Plan 2020

State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW), cl 4.6

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Texts Cited:

Managing Land Contamination Planning Guidelines SEPP 55—Remediation of Land

Category:

Procedural rulings

Parties:

David McElhone (First Applicant)
Melissa McElhone (Second Applicant)
Coordinated Logistics Pty Ltd (First Respondent)
Enzo Developments Pty Limited (Second Respondent)
Kiama Municipal Council (Third Respondent)

Representation:

Counsel:
A Jucha (Applicants)
Submitting appearance (First Respondent)
J Palmer, solicitor (Second Respondent)
Submitting appearance (Third Respondent)

Solicitors:
Mark McDonald & Associates (First and Second Applicants)
Fishburn Watson O’Brien (First Respondent)
Pikes & Verekers Lawyers (Second Respondent)
Marsdens Law Group (Third Respondent)

File Number(s):

2022/00343322

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. By notice of motion filed 14 July 2023, David and Melissa McElhone (collectively, the ‘applicants’) seek leave, first, to rely upon a further amended summons in the present Class 4 judicial review proceedings; and second, to rely upon an affidavit of David McElhone sworn 14 July 2023 both in support of the relief sought in the motion and in the substantive proceedings. The notice of motion came before me with some urgency.

2. Enzo Developments Pty Limited (‘Enzo Developments’), the second respondent, opposes the amendment principally on the ground that, because of the imminent commencement of the substantive hearing on 29 August 2023 it would suffer prejudice by not being able to adequately respond to the new claim put against it. Coordinated Logistics Pty Ltd (‘Coordinated Logistics’), the first respondent, and Kiama Municipal Council (‘Council’), the third respondent, have each filed submitting appearances in relation to the notice of motion.

Background

3. The background to the motion is relatively uncontentious and can be briefly summarised.

4. The notice of motion relates to Class 4 judicial review proceedings commenced by the applicants by summons filed 15 November 2022 in relation to a development consent granted by Council for the carrying out of intensive plant agriculture and the erection of an ancillary netting structure associated with development of an orchard at Lot 202 in DP1095943 and known as 92 Jerrara Road, Jerrara (‘Lot 202’), of which Enzo Developments is the owner. The applicants' property, being Lot 201 in DP1095943 and known as 82 Jerrara Road, Jerrara (the ‘property’), is effectively surrounded by land owned by Enzo Developments.

5. The amended summons filed 10 March 2023 and presently relied upon seeks orders in the nature of certiorari as well as declaratory relief in relation to Council's decision to grant development consent on 16 August 2022 (‘Consent’).

6. The grounds presently relied upon include that the Consent was granted contrary to the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) in that it purports to have approved a development which was carried out prior to the grant of the Consent; second, that Council’s decision was granted contrary to certain provisions of the Kiama Development Control Plan 2020 (‘DCP’); third, that the decision to grant the Consent was "manifestly or legally unreasonable” in circumstances where there is a concern in relation to the heritage impact on the adjoining property; and fourth, the lack of attendance at Lot 202 of the “majority of councillors who made the decision”.

7. The proposed further amended summons the subject of the present notice of motion seeks additional declaratory relief in relation to Council’s alleged failure to comply with cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW) (‘Resilience SEPP’) which has resulted in the Consent being granted in breach of s 4.15(1)(a)(i) of the EPA Act. Clause 4.6 is construed by the applicants as requiring a consent authority to consider whether the land the subject of a development application is contaminated (and any resulting remediation that may be required) when determining a development application involving a “change of use” of the land. The applicants maintain that the development application involved a relevant change of use and thereby triggered the operation of cl 4.6 of the Resilience SEPP.

Evidence

8. In support of their motion, the applicants read the affidavit of David McElhone sworn 14 July 2023 and the affidavit of their solicitor, Mark Gerard McDonald sworn 14 July 2023. Enzo Developments read the affidavit of Joshua Robert Palmer affirmed 21 July 2023.

9. The applicants’ affidavit evidence provides an understanding of the background and circumstances that gave rise to the matters for consideration in the substantive proceedings. It is sufficient for present purposes to note that the applicants depose to works that they observed (prior to the Consent being granted) have been undertaken on the land to which the Consent applies. Such works included the construction of a shed which was completed in 2020; the construction of a road providing access to Jerrara Road from Lot 202 which was completed in 2021; the construction, between the second half of 2020 and August 2022, of an orchard; the erection of around 50 steel structures, each of approximatively 4.5m in height, around what is described as a “substantial part of the perimeter” of the orchard in August 2021; the erection of an electric fence in 2021; the erection of a metal fence of 2.2m in height in April 2023; and the erection of four security camera poles of about 6m in height in April 2023.

10. Relevantly to the present motion, Mr McElhone deposed to the existence, since at least the time he and his wife purchased their property, of a well-developed and maintained hedge of approximatively 1.5m in height on the southern and western boundaries of the Property with Lot 202. Following certain works being undertaken in about March 2022 on Lot 202, including the construction of a fence and water irrigation and other hydrological works resulting in the diversion of stormwater, he noticed a gradual deterioration in the health of the hedge. Similarly, after further earthworks were undertaken on Lot 202 from April to June 2023, he observed further significant deterioration of the hedge. He subsequently raised his concerns regarding both the construction of trenches and the irrigation system, the removal of perimeter posts, and the deterioration of the hedge with his solicitor, Mr McDonald.

11. In his affidavit, Mr McDonald also set out the background to the proceedings, and gave evidence that Mr McElhone contacted him in relation to his concerns regarding the effect of the construction of the irrigation system, the digging of holes, and the physical works that were brought to his attention by Mr McElhone.

12. I note these matters in some detail for the reason that the (late) concern regarding the application of the Resilience SEPP is, in the applicant’s submission, explained by the timing of Mr McElhone’s observations.

13. The applicants provided extracts from the legislation and a copy of the Managing Land Contamination Planning Guidelines SEPP 55—Remediation of Land (‘SEPP 55’) which I have considered.

14. Enzo Developments read the affidavit of Joshua Robert Palmer, its solicitor, affirmed 21 July 2023. Mr Palmer deposed that cl 4.6(2) of the Resilience SEPP requires the consent authority to consider a “report” specifying findings in relation to contamination and an investigation undertaken in accordance with the Contaminated Land Planning Guidelines (prepared by the Department of Planning and Environment and the Environment Protection Authority). Mr Palmer noted that such a report is undertaken as a preliminary site investigation (‘PSI’). With that background, Mr Palmer stated that after receiving the applicants’ notice of motion to further amend their application, inquiries were made in relation to the time requested for the preparation of a PSI and he was told that this would take a minimum of four weeks and could take up to eight weeks.

15. Mr Palmer's evidence is that expert evidence in relation to the preparation of a PSI (and other matters) would unlikely be available in time for the hearing should the amendment be allowed. Mr Palmer also stated that if the new claim had been raised earlier there may have been sufficient time to adequately respond to the new allegation, including the retention of expert evidence. In those circumstances, Enzo Developments would require the vacation of the hearing dates should the amendment be allowed.

16. Mr Palmer also candidly indicated that, irrespective of these proceedings, Enzo Developments has prepared a new development application which has been submitted to the NSW Planning Portal and that if the new development application, which I assume relates to a development not dissimilar to that which is the subject of the Consent, is approved by Council, then Enzo Developments could potentially surrender the Consent such that these proceedings would be rendered otiose.

Submissions

17. The applicants submit that there is no prejudice to the respondents and that there has been no delay in raising the (recent) concern in relation to the application of the Resilience SEPP.

18. The applicants direct the Court to the recent observations of Mr McElhone and point to the evidence of two earlier statements of environmental effects (dated 2019 and 2022) prepared for the proposal, which referred to the earlier “use” of the subject property for "dairy cattle", as an indication that there has been a relevant "change of use". The change of use is submitted to have triggered the requirement to consider cl 4.6(2) of the Resilience SEPP which provides that when a change of use is undertaken, the consent authority, in this case Council, must consider the findings of a report detailing a PSI undertaken on the land concerned.

19. Enzo Developments submits that the applicants have brought this application at a very late stage which evidently causes prejudice in circumstances where the hearing dates are only four weeks away. The prejudice is Enzo Developments’ inability to retain an expert to address the need for a PSI (on the assumption that one is needed).

20. Despite this, Enzo Developments’ position in this regard is that, in light of the historical agricultural use of the property, its continued used for agricultural purposes does not give rise to any relevant change in use triggering the application of the Resilience SEPP.

21. While it may be that this raises a primary legal issue for determination, Enzo Developments submits that given that the amendment now being sought at this late stage, any new evidence, if it is to be marshalled in response to the amendment, would take some time and, may, in any event, be relevant to both the applicants’ primary claims in the proceedings (and the primary issues), as well as to the Court's exercise of its discretion. In those circumstances, and in response to a comment from the bench, Enzo Developments submits that on any view, it would be both undesirable and inefficient to split the hearing to accommodate a separate hearing regarding the primary obligation or liability (to consider cl 4.6 of the Resilience SEPP) and the possible consequential question regarding the exercise of discretion. In any event, the fact is that four to eight weeks is required for Enzo Developments to properly respond to the new allegation.

22. Enzo Developments repeated the evidence of its intention to seek a new development consent and submitted that such a course of action may render the further conduct of the present proceedings otiose.

Consideration

23. I have carefully considered the evidence and the submissions, and I am of the view that, first, the amendment should be allowed; second, the hearing dates should not be vacated; and third, the applicants should be allowed to rely upon the recent affidavit evidence of Mr McElhone at the hearing of the substantive proceedings.

24. I have also taken into account the well-established principle that, balancing the overriding purpose enunciated in both the Civil Procedure Act2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) and the dictates of justice, whilst consideration must always depend upon the particular circumstances, generally, leave to amend should be granted if the application is made in a timely manner and for a proper purpose. I have also considered the High Court’s articulation and application of this principle in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. My reasons are shortly stated below and accord generally with the applicants' submissions.

25. I consider there to be four matters to be taken into account in determining the applicants’ motion: first, the nature and importance of the amendment; second, the extent of the delay and costs associated with the amendment; third, the prejudice that might be assumed or is shown; and fourth, the explanation for the delay in applying for leave to amend. Although these factors are not exhaustive nor a “shopping list”, I consider them useful in guiding the exercise of my discretion in this matter.

26. I consider the amendment to raise a matter of importance and, without expressing any view as to the prospects of success thereof, that a consent authority's obligation to take into account mandatory considerations is a matter of public interest. I am also conscious of the fact that any suggested oversight by the consent authority (or the decision-maker) or failure to consider a mandatory matter does not appear to have been the fault or at the behest of the applicants.

27. Moreover, the delay that has occurred is not fatal to the success of the motion. The changes to the vegetation observed by Mr McElhone that have given rise to the present concern as to potential contamination of the land appear to have occurred over a relatively recent period of time. Without expressing any view as to whether these observations are determinative of, or even relevant to, the issues in the substantive proceedings, I accept that they are recent, and the application to amend has been brought expeditiously. It follows, in my view, that the recency of Mr McElhone’s observations offer an appropriate explanation for the timing of the applicants’ notice of motion for leave to amend their application.

28. In relation to prejudice, I accept that the amendment is at the least most inconvenient for Enzo Developments. However, while Enzo Developments opposes the motion on the basis that it would not have sufficient time to obtain expert evidence addressing the matters sought to be raised by the applicants, I am not confident that any such evidence would in any event be relevant to the primary issues. In addition, I find that any concern about Enzo Developments’ ability to adduce expert evidence is alleviated by the fact that the applicants have not provided any expert evidence in relation to suggested contamination, and the observations of Mr McElhone, not those of an expert.

29. I also accept that the amendment, in these circumstances, may lead to the possible splitting of the hearing, a matter which is always undesirable. I note in this regard that Enzo Developments has admitted that it is seeking a new development consent and that this may render the proceedings otiose.

30. However, the present state of a new development application is somewhat unclear, although I am informed that the development application itself does not have a contamination report, preliminary or otherwise, as part of the material supporting it. In any event, that is a fact which I am quick to add is not relevant to the question presently before me.

31. On balance, I do not consider that prejudice or inconvenience caused by the amendment to Enzo Developments is such as to prevent leave being given for the amendment sought by the applicants. If Enzo Developments is able to marshal evidence in response to the amendment, this is a matter for the trial judge to consider. In passing, I note the reasons which I have given above in relation to the amendment may influence the trial judge to allow further evidence in relation to the consideration of the amended claim.

32. Overall, I find that it is appropriate to permit the amendment. To do otherwise would run the risk of depriving the applicants of pleading an issue that may be relevant to the final determination of the proceedings.

33. In relation to the second order sought, for leave to rely upon the recent McElhone affidavit, I consider that leave should be granted. It may be (and I express no view) that this affidavit calls for some response on behalf of the respondents in addition to those matters considered above.

34. I also take into account in my consideration, that there are a number of primary issues for the Court to determine in this matter in relation to issues such as a change of use (and whether that change of use triggers the obligation in relation to the Resilience SEPP), and those matters aside, and not unimportantly, there are a number of other grounds raised by the applicants.

Orders

35. The orders of the Court are:

1. The applicants are granted leave to amend their further amended summons in accordance with the draft attached as annexure “A” to the notice of motion filed 14 July 2023.

2. The applicants are granted leave to rely upon the affidavit of David McElhone sworn 14 July 2023.

3. Orders for the further conduct of the hearing in accordance with Short Minutes of Order provided by the parties in chambers.

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Decision last updated: 30 August 2023