Kavich v Holt

[2020] NSWLEC 173

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kavich v Holt [2020] NSWLEC 173

Hearing dates:

1 December 2020

Date of orders:

1 December 2020

Decision date:

01 December 2020

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See [26] to [31], [35]

Catchwords:

ADJOURNMENT - application by Second Respondent to Class 4 proceedings to adjourn pending lodgement and determination of a modification application to an existing development consent - modification said to resolve flooding and other issues matters of complaint by the Applicant in the Class 4 proceedings - prejudice to Applicant if Class 4 proceedings significantly delayed by adjournment - expert evidence from drainage engineers for Applicant and Second Respondent - evidence from both drainage engineers unsatisfactory - appropriate to vacate hearing dates for end March 2021 - appropriate to grant adjournment to permit consideration of modification application - also appropriate to relist Class 4 proceedings in May 2021 for hearing if determination of the modification application has not resolved the matters in dispute - partial success by each party on the adjournment application - appropriate that each party bear its own costs of the adjournment application

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 6.21(1)

Cases Cited:

Gardner v The Dairy Industry Authority (1977) 52 ALJR 180

Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; [2000] HCA 11

Texts Cited:

Expert Witness Code of Conduct

Category:

Procedural rulings

Parties:

Benjamin Kavich (Applicant/Respondent on the Motion)
Garry Holt (First Respondent)
Matthew Bartolo (Second Respondent/Applicant on the Motion)

Representation:

Counsel:
Ms L Nurpuri, barrister (Applicant/Respondent on the Motion)
Mr G Holt (in person - First Respondent)
Mr I Hemmings SC/Mr J Farrell, barrister (Second Respondent/Applicant on the Motion)

Solicitors:
Mills Oakley (Applicant/Respondent on the Motion)
Malcolm Murray & Associates (Second Respondent/ Applicant on the Motion)

File Number(s):

87523 of 2020

Publication restriction:

No

EXTEMPORE JUDGMENT

1. HIS HONOUR: These proceedings were commenced by Summons filed on 19 March 2020. The Summons seeks two declarations and one order. The order seeks to require a site at Eastern Creek to be reinstated, including all relevant ground levels, in circumstances where, on the evidence I have before me, over 45,000 cubic metres of fill has been imported onto the site - creating a significantly topographically differently shaped site than that which was envisaged to exist in the consent given by the (then) Minister for Urban Affairs and Planning (the Minister) and dated 29 August 1997.

2. On 9 July 2020, representatives of the Second Respondent filed a Notice of Motion seeking to have the matter adjourned in order to permit the filing of a modification application with the Minister which would have the effect, as outlined to me at the time, of regularising the fill that had been imported into the site and also, it was said, addressing the concerns raised by the Applicant in these Class 4 proceedings arising out of flooding, which was said to be caused by the alteration of the landform on the site (at 50 Peter Brock Drive, Eastern Creek).

3. The application for an adjournment was filed on 29 July 2020, seeking that the proceedings be adjourned, initially, to permit the determination of a modification application which was said to be being filed with the Department by 7 August 2020. Subsequently, when Mr Farrell was appearing as the primary advocate for the Second Respondent, it became apparent that that date was entirely unrealistic and that a further two months was permitted for that purpose. The application has now been lodged a little after that date in October 2020.

4. A variety of material has been provided to the Department. Various elements of it are in evidence before me in this adjournment application. Although I do not have evidence of significant specificity, the affidavit of Mr Carlo Di Giulio of 30 November 2020 was read on this adjournment application. Mr Di Giulio, being the town planner retained by the Second Respondent in these proceedings, advises that the modification application has been filed and has been placed on public exhibition. There is an expectation (put on behalf of the Second Respondent) - perhaps optimistic but I express no view - that the modification application might be determined by mid- to late January 2021. At the present time, these Class 4 proceedings are set down for hearing between 29 March and 1 April 2021, a four-day hearing.

5. It is proposed that these proceedings be adjourned to permit determination of the modification application. Mr Hemmings SC, who now appears for the Second Respondent, puts the proposition that that which is sought by the modification application will have the effect of curing all of the underlying matters pleaded on behalf of the Applicant in these proceedings. Whether or not that is the case is a matter which will necessarily await determination of the modification application.

6. Ms Nurpuri, counsel for the Applicant in these proceedings, puts the proposition, at least as I understood her submissions, that even if matters of a degree of practicality were resolved by the modification application being approved there would still be a question necessary to be considered as to whether declarations should be made.

7. Such a proposition necessarily engages the consideration of matters dealt with by the High Court in Gardner v The Dairy Industry Authority (1977) 52 ALJR 180 as to whether bare declarations were appropriate to be made or not (being mindful however that, in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) CLR 591, [2000] HCA 11, Gaudron J observed that there may be cases where a bare declaration of breach of a legal requirement will serve to address some or all of the harm brought about by the contravention at which the declaration is addressed).

8. Forensically fascinating issues though those might be, they are not ones that are engaged for my consideration in this adjournment application. Necessarily inherent in the adjournment application is the vacation of the hearing dates that are presently set.

9. As I have raised with the parties, if I am to grant the adjournment it is necessary that I vacate those hearing dates, I foreshadowed that if I am minded to do so it would be appropriate, at a sufficient period of time after those dates, to relist the matter for hearing so as not to compound the disadvantage that is already occasioned to Ms Nurpuri’s client by the necessarily lengthy consideration of this adjournment application.

10. The primary matters that are pleaded for relief in the Summons commencing these Class 4 proceedings address flooding issues. Whilst the Points of Claim in the proceedings, filed on 5 June 2020, also raised issues of potential dust impacts at paragraph 13(d) of the Points of Claim, they were not raised in an earlier affidavit read on the adjournment application from Mr Kavich and have only been pressed as matters of concern in his affidavit filed on 26 November 2020, which was read (after a number of excisions) in the hearing before me today.

11. It is clear, on the evidence that I have had, that the primary matter of concern relates to the risk of further flooding to be occasioned to Mr Kavich’s automotive repair business located on a site immediately adjacent to the south-eastern corner of the site operated by the First and Second Respondents to these proceedings.

12. At this point, it is appropriate to observe that neither of the Respondents to these proceedings is in fact the legal owner of the site. The legal owner of the site is the Minister. The Minister has not been joined to these Class 4 proceedings. It is necessary, consistent with the decision of the Court of Appeal in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 (Ross), that the Minister be a party to these proceedings, even if, on reflection, the Minister adopts the position of filing a submitting appearance. However, for any orders which might arise out of these proceedings, it is necessary, as the Court of Appeal made clear in Ross, that the Minister must be a party so that the Minister is bound to permit the carrying out of anything that might be ordered in these proceedings.

13. I have this morning heard evidence from Mr Haddad, the drainage expert on behalf of the Respondents, and from Mr Gray, the drainage expert on behalf of the Applicant.

14. I had earlier expressed some concerns about the extent of that which was contemplated by Mr Haddad as being the appropriate method of rectification of the potential flooding impacts on the Applicant’s business. In response to that, Mr Haddad was instructed to prepare plans (now incorporated in the modification application lodged with the Department) that were said by him to provide appropriate protection to the Applicant’s property, even in times of probable maximum flood (PMF), if such a rainfall event was to occur.

15. Plans to a PMF design considered to be satisfactory by Mr Haddad have now been incorporated in the modification application, based not merely on a piping‑and‑swale response as had been previously contemplated but now involving a significant culvert structure as well as, on my reading of the plans, some modifications to the existing swaling in the vicinity of the Applicant’s property.

16. As I drew attention to Mr Hemmings this morning, on my reading of the earlier iteration of Mr Haddad’s report and on the iteration which came into evidence today as an exhibit during the course of today’s hearing, Mr Haddad had asserted that the two present pipes located in the property were 300 millimetres in diameter.

17. The evidence of Mr Gray, also before me by way of an Expert Report, shows a photograph of the pipes, together with a tape measure demonstrating that each of those pipes is in fact 150 millimetres in diameter rather than 300 millimetres. A simple mathematical calculation, based on the area of a circle ) demonstrates that the flow capacity of a 150‑millimetre‑diameter pipe is one‑quarter of the flow capacity of a 300‑millimetre pipe. That caused me to have significant concern as to what reliance I should be able to place on Mr Haddad’s evidence.

18. As a result of those concerns, oral joint evidence was given today by Mr Gray and Mr Haddad, during which Mr Gray was cross-examined by Mr Hemmings concerning his Expert Report. Rather than giving me great confidence in his expert evidence when compared to the reservations I had of Mr Haddad’s expert evidence, I am left, for reasons which I will outline, with significant uncertainty as to the appropriateness and reliability of the evidence of each of them in these proceedings.

19. Mr Gray, on the first page of the annexure to his affidavit of 26 November 2020, adverts to reports that he has provided to Ms Nurpuri’s instructing solicitors in July and November 2020, earlier than the report currently before me. Neither of those documents were provided to Mr Haddad for the purposes of the joint expert conferencing, contrary to the requirements of the Expert Witness Code of Conduct and the requirements in the Uniform Civil Procedure Rules 2005 for expert witness reporting.

20. I think the final conclusion that I draw, without needing to describe further why I consider the evidence of both of these witnesses to be unsatisfactory overall, is to note that the apparent significant differences between them are as to the adequacy of Mr Haddad’s design to cope with the PMF, if there is to be a blockage of the culvert, and whether the overland flow path, which is the contingent coping mechanism if the culvert is blocked, is adequate for that purpose.

21. Mr Haddad indicated, in his written material and in the Joint Expert Report, that he felt that it would cope if there was to be a 50% blockage of the culvert. Mr Gray expressed the view that he can consider it was appropriate to have an overland flow path that was capable of carrying the entirety of the discharge if there was a 100% blockage.

22. I intuit that that will be the basis of a submission to be made on behalf of the Applicant in these proceedings to the Department in response to the modification application currently on public display.

23. Critically, for the purposes that I need to address, I made careful note of the fact that, in response to questions from Mr Hemmings, Mr Gray conceded the following:

1. First, it was possible to design a stormwater disposal system for the site whereby the stormwater discharge would be dealt with appropriately if there was to be no blockage of the culvert;

2. Second, it was possible to design a system whereby the overland flow path would accommodate the stormwater discharge at PMF if there was a 50% blockage of the culvert; and

3. Finally and most importantly, Mr Gray conceded that it would be possible to design an overland flow path that would cope with the totality of the PMF discharge if there was to be a 100% blockage of the culvert.

24. It is unnecessary for me, for the purposes of these proceedings (because that would involve me in a merit assessment), to determine whether or not any one of those options was the appropriate one to be adopted.

25. It is sufficient for me to know, for these purposes, that the appropriate consent authority for the modification application will need to determine the adequacy of the stormwater disposal process, including whether it should be required to cope with 100% of the PMF at 100% of the culvert blockage. That is capable of being put to that consent authority for Ms Nurpuri’s client and to have the consent authority consider that submission.

26. I am satisfied, under all the circumstances, that it is appropriate to grant the adjournment as sought.

27. There are, however, a number of matters that I consider need to be addressed in the orders to give effect to the outcomes that I have concluded are appropriate this afternoon. It would seem to me, under the circumstances, that it is appropriate that the solicitor for the Second Respondent prepare the orders to be settled with the other parties, that is, Mr Holt personally and with Ms Nurpuri’s instructing solicitors, and provided to my Associate for me to make the orders in chambers:

1. I am satisfied that in general terms the order sought in Order 1 of the Notice of Motion should be made.

2. Second, I am satisfied that there should be an order vacating the hearing to be held between 29 March and 1 April 2021.

3. Third, I am satisfied that the matter should be listed for a four-day hearing commencing on 14 May 2021.

4. I am also satisfied that the Minister owning the property should be joined as a party to the proceedings pursuant to r 6.21(1) of the Uniform Civil Procedure Rules 2005, with the first return date for the Minister’s participation being listed for Friday 26 February 2021 before the List Judge.

5. I am satisfied that I should provide that, if Ms Nurpuri’s client wishes to file any Notice of Motion seeking to rely on an Amended Summons in these proceedings, such Notice of Motion and supporting affidavit should be filed no later than Tuesday 16 February 2021 and made returnable before the List Judge on Friday 26 February 2021.

6. I am satisfied that the matter should be listed for further directions before the List Judge on Friday 26 February 2021.

7. The Notice of Motion sought liberty to restore on five working days’ notice. Whilst I suspect that it is unlikely that liberty will need to be exercised, nonetheless, it should be provided for in the orders.

8. The Notice of Motion also sought that each party is to pay their own costs of the motion. I have not had the parties address me on that point this afternoon.

SHORT SUBMISSIONS ON COSTS WERE THEN MADE

28. HIS HONOUR: Ordinarily, on a matter such as this, costs would follow the event. As discussed by the Court of Appeal in Sze Tu v Lowe (No 2) [2015] NSWCA 91, the event is the outcome of the motion. Ordinarily, that would put the costs’ position in favour of Mr Hemmings’ client.

29. However, the nature of the relief which has been granted (and will be embodied in the orders that I will make in chambers) is not entirely that which has been sought by Mr Hemmings’ client - in that these proceedings remain fixed for hearing, albeit at a slightly later date.

30. I am satisfied, under the circumstances, that I should not award the costs to Ms Nurpuri’s client but I think it appropriate, given the way the matter has unfolded, that it would be appropriate to order that each party bear their own costs of the motion.

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Amendments

28 January 2021 - Formatting fixes only.

12 February 2021 - File number corrected.

Decision last updated: 12 February 2021