Palm Lake Works Pty Ltd v Ballina Shire Council (No. 2)

[2020] NSWLEC 1278

Land and Environment Court

New South Wales

Medium Neutral Citation:

Palm Lake Works Pty Ltd (No. 2) v Ballina Shire Council [2020] NSWLEC 1278

Hearing dates:

22 June 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court Orders that:

(1) The Applicant’s Notice of Motion filed on 17 June 2020 is dismissed.

(2) The hearing date of 8 July 2020 is confirmed.

Catchwords:

PROCEDURE – remitted matter – notice of motion to vacate hearing dates – request to re-open case – seeking leave to amend development application – leave to rely on expert evidence – motion dismissed

Legislation Cited:

Ballina Local Environmental Plan 2012

Civil Procedure Act 2005

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Local Government Act 1993

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

State Environmental Planning Policy No 62—Sustainable Aquaculture

Uniform Civil Procedure Rules 2005

Cases Cited:

ANZ v Mio Amico Pty Ltd [2013] NSWSC 716

Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297

Hayward v Sydney Water Corporation [2019] NSWLEC 87

Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174

Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No 3) [2019] NSWLEC 142

Palm Lake Works Pty Ltd v Ballina Shire Council [2020] NSWLEC 1247

Perilya Broken Hill Ltd v Valuer-General (No. 8) [2015] NSWLEC 72

Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36

Starray Pty Ltd v The Council of the City of Sydney (2001) 112 LGERA 438; [2001] NSWLEC 38

UTSG Pty Ltd v Sydney Metro (No. 5) [2019] NSWLEC 107

Texts Cited:

Acid Sulphate Soil Management Manual

Acid Sulphate Soil Management Plan

Category:

Procedural and other rulings

Parties:

Palm Lake Works Pty Ltd (Applicant)
Ballina Shire Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
J Reid (Respondent)

Solicitors:
Mills Oakley (Applicant)
Parker Kissane Lawyers (Respondent)

File Number(s):

2018/326045

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant seeks the following orders by Notice of Motion filed 17 June 2020 (‘the Notice of Motion’):

“1. The hearing date listed on 8 July 2020 is vacated.

2. The proceedings are fixed for a three-day hearing on ________

3. The hearing is to commence in Court at 10.00am.

4. Leave is granted to the Applicant to re-open its case as set out in the following orders.

5. The Applicant is granted leave to rely on a new or amended acid sulfate soils management plan.

6. The Applicant is granted leave to rely on new or amended civil plans and associated documents that address water and sewer servicing of the amended development.

7. The Applicant is granted leave to rely on new civil plans and associated documents that address any proposed works in North Creek Road Reserve.

8. The Applicant is to file and serve the documents referred to in orders 5-7 by 18 July 2020.

9. The Respondent is to file and service further amended statement of facts and contentions in accordance with Schedule B of Practice Note – Class 1 Development Appeals by 29 August 2020.

10. The Applicant is to file and serve any amended statement of facts and contentions in reply in accordance with Schedule C of Practice Note – Class 1 Development Appeals by 19 September 2020.

11. The parties are to lodge an agreed, of it [sic] not agreed, competing, Online Court communication(s) for the provision of expert evidence by 26 September 2020.

12. Under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (‘UCPR’), the Court makes the following directions in regarding expert evidence (in addition to any orders that the Court may make as a result of order 11).:

The Applicant’s and Respondent’s respective experts in agricultural or environmental soil science are to confer in relation to acid sulfate soils issues under UCPR r 31.24 and prepare a joint report.

The Applicant’s and Respondent’s respective experts in services engineering are to confer in relation to the provision of water and sewer servicing issues under UCPR r 31.24 and prepare a joint expert report.

The Applicant’s and Respondent’s respective experts in road engineering are to confer in relation to the road engineering issues under UCPR r 31.24 and prepare a joint report.

13. Each of the joint expert reports in order 12 are to be filed and served by the date that is six weeks before the hearing.

14. The parties are to lodge agreed, of it [sic] not agreed, competing, Online Court communication(s) providing the individual names of the experts referred to in orders 12 by 26 September 2020.

15. The supplementary joint report of the parties’ ecologists is to be filed and served by the date that is three weeks before the hearing.

16. Unless the Court otherwise orders, expert evidence may not be adduced at the hearing otherwise than in accordance with the directions made by the Court in accordance with UCPR rr 31.19 and 31.20, including compliance with directions as to the time for service and filing of experts’ reports and joint expert reports.

17. At the hearing the evidence of the experts is to be given by way of concurrent evidence, unless the hearing judge or commissioner directs otherwise.

18. A party calling a witness may not, without the leave of the Court, lead evidence from the witness the substance of which is not included in a document served in accordance with the Court’s directions.

19. If any witness is required for cross-examination, notice is to be given at least 7 days before the hearing.

20. A party who proposes to object to any part of an affidavit, statement or report is to file and serve a notice of its objections, including the grounds in support, at least seven days prior to the hearing.

21. The respondent consent authority is to file and serve a supplementary bundle of documents 14 days before the hearing. The bundle is to contain copies of relevant environmental planning instruments, relevant extracts from development control plans and policies and, and documents evidencing the lodgement, processing and determination of the application by the consent authority, including all submission from objectors, the decision of the consent authority but is not to otherwise include copies of any documents annexed to the development appeal application. Unnecessary copying and duplication of documents is to be avoided. The bundle is to be subdivided into relevant divisions, paginated and to have a table of contents. The supplementary bundle is not to include any documents that are already in the bundle of documents before the Court.

22. The respondent consent authority is to file and serve amended draft conditions of consent (in both hard copy and electronic form) 14 days before the hearing.

23. The applicant for consent is to file and serve amended draft conditions in response (in both hard copy and electronic form) 7 days before the hearing.

24. The parties have liberty to restore on three days’ notice.”

(Applicant’s Notice of Motion, filed 17 June 2020)

2. For the reasons that follow I have determined not to exercise discretion and make the orders sought by the Applicant.

Background

3. The background to this matter, as relevant to this Notice of Motion, is set out in Palm Lake Works Pty Ltd v Ballina Shire Council [2020] NSWLEC 1247 (at [3]-[7]). It is relied upon in this judgment without repetition.

4. The Respondent opposes the orders sought in the Notice of Motion.

5. I was assisted by the parties providing comprehensive written and oral submissions. I will refer to the substance of those submission where they relate to the reasons for my judgment below.

The Applicant’s Position

6. The Applicant relies on an affidavit of Ms Kalinda Doyle, dated 17 June 2020 (‘the Doyle Affidavit’).

7. In making their submissions the Applicant utilises the numbering and abbreviations of the appeal grounds as detailed in the decision of Chief Justice Preston in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (‘Ballina v Palm Lake’) at [2].

State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) and the impact on aquaculture grounds

8. The Applicant submits that two of the grounds upheld on appeal can be addressed on remitter with no additional information or evidence. Those grounds are:

• Ground of appeal 6 that:

“The Commissioner erred in finding that State Environmental Planning Policy (Coastal Management) 2018 (‘Coastal Management SEPP’) did not apply and instead that State Environmental Planning Policy 14- Coastal Wetlands (‘SEPP 14’) did apply, when the opposite was the case, and further failed to form the required opinion of satisfaction that the proposed development would not significantly impact on the matters in cl 11(1) of the Coastal Management SEPP.”

• Ground of appeal 4 that:

“The Commissioner failed to consider whether the development, because of its nature and location, may have an adverse effect on a priority oyster aquaculture area, as required by cl 15B of State Environmental Planning Policy 62-Sustainable Aquaculture (‘Sustainable Aquaculture’ SEPP).”

9. Inherent in this submission is that the orders sought in the Notice of Motion are not directed at these two grounds.

10. Mr Hemmings, for the Applicant, argues that the impact on aquaculture and the Coastal Management SEPP grounds are legal errors which are capable of being addressed on remitter, based on the current evidence before the Court and further submissions of the parties.

The Acid Sulphate Soils Management Plan ground

11. Mr Hemmings submits that additional information and evidence is required to respond to the findings of Preston CJ on the fifth ground of appeal. The fifth ground of appeal is summarised in Ballina v Palm Lake at [2] namely:

“The Commissioner erred in finding that the precondition in cl 7.1(3) of Ballina Local Environmental Plan 2012 (‘Ballina LEP’) has been met in the absence of an Acid Sulfate Soils Management Plan that included all of the proposed works, including works to the Western Creek line (‘the Acid Sulfate Soils Management ground’).”

12. Mr Hemmings submits that, to address the findings in Ballina v Palm Lake, the Applicant seeks to amend the existing Acid Sulphate Soil Management Plan (‘ASSMP’) to address (at least) the works to the Western Creek line and the determination of whether monosulfidic black ooze is present in that location.

13. Further, Mr Hemmings argues that cl 7.1(3) of Ballina Local Environmental Plan 2012 (‘LEP 2012’), requires that the ASSMP be prepared in accordance with the Acid Sulphate Soil Management Manual (‘ASS Manual’). He submits that the Court would be assisted by expert evidence in regard to the compliance of the proposed ASSMP with the ASS Manual.

14. The relevant precondition in LEP 2012 in relation to the ASSMP is:

7.1 Acid sulfate soils

....

Development consent must not be granted under this clause for the carrying out of works unless and acid sulfate soils management plan for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulphate Soils Management Manual and has been provided to the consent authority.

15. The amended ASSMP referred to by Mr Hemmings, and for which leave is sought in the Notice of Motion, is not as yet before the Court.

16. Consistent with the framing of the Notice of Motion, the Applicant submits that prior to the hearing such an updated ASSMP would be provided to the Respondent for their assessment. Mr Hemmings submits that if the Respondent is satisfied with the amended ASSMP, the need for evidence in the remitted proceedings may be curtailed to the issue of the compliance of the updated plan with the ASS Manual.

17. In support of the Notice of Motion, and the overarching request of the Applicant to re-open the case, Mr Hemmings argues that the decision of the Court in Ballinav Palm Lake represents a change in the understanding of, or approach to, the law. He submits that in determining whether to grant the Notice of Motion, the Court should give weight to his submission that the findings in Ballinav Palm Lake is a stricter, and in his view novel, approach to the application of the LEP 2012 provision and as such it is appropriate to allow the Applicant an opportunity to meet the deficiency identified.

18. The Doyle Affidavit also notes that in the original hearing of the matter neither the Respondent nor the Applicant sought an order from the Court in relation to expert evidence from soil scientists or other relevant experts to give evidence in relation to the ASSMP.

The likely impacts ground and the provision of water and sewer ground

19. Following the decision of the Court in Ballina v PalmLake, the Applicant seeks leave to rely on new civil plans and associated documents to detail any proposed works in North Creek Road Reserve. The plans and documents referred to in the Notice of Motion are not before the Court.

20. It is Mr Hemmings submission that the Court on remitter would need to consider the civil plans and associated documents in relation to the works on North Creek Road and their impacts. Mr Hemmings confirms that the Applicant does not seek to amend their development application to include the road works.

21. The Doyle Affidavit notes that the Applicant is currently preparing: a detailed design of the water and sewer works; associated documents; and the application for the necessary approvals under s 68 of the Local Government Act 1993. It is the Applicant’s expectation that the application will be lodged with Ballina Council by the 18 July 2020.

22. Mr Hemmings submits that the decision of the Court in Palm Lake v Ballina means that on remitter the Court either needs to be satisfied that: either that the likely impacts of the road, civil and infrastructure works in North Creek Road are too remote in the chain of likely consequences arising from the proposed development; or secondly that the Court is able to form a positive opinion of satisfaction that the precondition at cl 28(1) of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 (‘SEPP HSPD’) is met and, following an assessment under s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’) of the likely impacts take those into account in the overall assessment and determination of the application.

23. Mr Hemmings argues that the decision of the Court in Ballina v Palm Lake took a new or stricter application of the law and that it is not unreasonable for the Applicant to have relied on previous decisions of the Court (such as Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297) in determining how to approach the provision of evidence in the primary proceedings.

Overall Submissions on the Notice of Motion

24. In support of the grant of the Notice of Motion, the Applicant makes the following further submissions:

1. That in the primary proceedings, at the conclusion of a complex and resource intensive hearing, the Court found that the proposed development was on merit acceptable.

2. That, in relation to the ASSMP, road, civil and infrastructure works in North Creek Road and the provision of water and sewer, the Council’s contentions in the primary proceedings were not that consent could not be granted, but that the information provided by the Applicant was insufficient. Mr Hemmings disagrees with Ms Reid’s submissions that these issues were raised in the Statement of Facts and Contentions and in the course of the hearing.

3. That the Court’s overriding objective to facilitate the just cheap and quick resolution of the proceedings in accordance with s 56 of the Civil Procedure Act 2005 (‘CP Act’) should be balanced with the overall timeframe for the resolution of the appropriate development of the subject site.

4. That the decision of the Court in Ballina v Palm Lake took a new or stricter application of the law and that it is reasonable for the Applicant to have relied on previous decisions of the Court in determining how to approach the provision of evidence in the primary proceedings.

25. Mr Hemmings submits that, with the exception of Perilya Broken Hill Ltd v Valuer-General (No. 8) [2015] NSWLEC 72 (‘Perilya v Valuer General (No. 8)’), the authorities relied on by the Respondent are distinguished from the current proceedings as they relate to the re-opening of proceedings after the close of a hearing, not a remitted matter.

26. In relation to Perilya v Valuer General (No. 8) Mr Hemmings submits that the principle of finality does not override the Court’s discretion. He argues that in relation to the Notice of Motion discretion should be applied and the motion granted to allow the Applicant to respond to the findings of the Court in Ballina v Palm Lake which, in his submission, were findings that were a clarification, or novel statement, of the law.

The Respondent’s Position

27. The Respondent relied on an affidavit of Ms Clarissa Huegill, dated 19 June 2020 (‘the Huegill Affidavit’).

28. The Respondent provided written submissions to the Court and made oral submissions during the hearing of the motion.

29. The Respondent opposes the motion. They seek for the Court to dismiss the motion and for the remitted matter to proceed to hearing as listed on 8 July 2020. The reasoning of the Respondent is summarised in the following paragraphs.

Vacation of Dates

30. Ms Reid submits that the Court should give weight to the legal principles on the vacation of hearing dates summarised by Duggan J in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No 3) [2019] NSWLEC 142 (having regard to authority in Hayward v Sydney Water Corporation [2019] NSWLEC 87; UTSG Pty Ltd v Sydney Metro (No. 5) [2019] NSWLEC 107; Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174; ANZ v Mio Amico Pty Ltd [2013] NSWSC 716) at [7]). Those principles were summarised as:

“1. The discretion to adjourn proceedings is derived from s 66 of the Civil Procedure Act 2005 (NSW) (CP Act);

2. The discretion conferred by s 66 of the CP Act must be exercised in accordance with the overriding purpose identified in s 56(1) and the dictates of justice as required by s 58 of the CP Act (which include a mandatory consideration of the objects of case management as outlined in s 57 of that Act);

3. In balancing these relevant considerations the prejudice to be considered is not just the prejudice to the parties but also the delays, inefficiencies, and waste of public resources that may be occasioned to the system generally by the late adjournment of proceedings.”

31. Ms Reid submits that in considering the Applicant’s Notice of Motion, the Court must seek to give effect to the overriding purpose of the CP Act and the Uniform Civil Procedure Rules 2005 (‘UCPR’) to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Further, she submits that to give effect to the overriding purpose, the proceedings need to be managed having regard to the objects specified in s 57(1) of the CP Act. They are:

57   Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a)  the just determination of the proceedings,

(b)  the efficient disposal of the business of the court,

(c)  the efficient use of available judicial and administrative resources,

(d)  the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2)  This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

32. Ms Reid argues that in deciding whether to grant the Applicant’s Notice of Motion “the Court is obliged to seek to act in accordance with the dictates of justice, which are to be determined in a particular case having regard to ss 56, 57 and 58 of the CPA.” (Respondent’s written submissions, 22 June 2020, p 3).

33. Applying the preceding to the current matter, Ms Reid argues that the vacation of the hearing dates should not be granted on the following grounds:

“(1) Relying on the procedural history of the matter as detailed in the Heugill Affidavit, the Court should give weight to the opportunities provided them already by the Court to both amend their development application (on six previous occasions) and to reopen the hearing the case after the completion of the hearing.

(2) That vacation of the hearing date of 8 July 2020 and allocation of a further three days hearing time to facilitate, as yet, undefined amendments to the application and further evidence would unnecessarily increase Council’s costs in the proceedings and is contrary to the public interests in the just, quick and cheap resolution of the issues in dispute.

(3) By reference to the Court’s published list there is not three consecutive days available for such a listing until February 2021. If this was to be the proposed hearing dates they would be some two years and four months after the proceedings were commenced.

(4) That in the particular circumstances of the case, the Court would exercise its discretion to refuse to vacate the hearing date to avoid an inefficient resolution of the matter and the waste of public resources of the current listing date.”

(Respondent’s written submissions, 22 June 2020, pp 6, 7)

Leave to re-open

34. Further Ms Reid argues that in considering the Applicant’s request to re-open the proceedings, the Court should give weight to the principles established by a number of cases. She summarises these authorities as follows:

“In Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Clarke JA (with whom Mahoney and Meagher JJA agreed) stated at 478:

“The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reason why the evidence was not led in the first place…”

In Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266, the High Court considered the exercise of a Court’s discretion where the circumstance of the case is that there had been a deliberate decision not to call particular evidence and noted:

If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application.

In ASIC v Rich (2006) 235 ALR 587 at [18] Austin J listed the factors that he agreed were relevant to the exercise of discretion to grant leave to re-open a case as follows:

i. The nature of the proceeding;

ii. Whether the occasion for calling the further evidence ought reasonably to have been foreseen;

iii. The consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;

iv. The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;

v. The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;

vi. The degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;

vii. The prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;

viii. The public interest in the conclusion of litigation; and

ix. What explanation is offered by the plaintiff for not having called the evidence in chief.

In Perilya Broken Hill Ltd v Valuer-General (No 8) [2015] NSWLEC 72, Biscoe J considered a notice of motion seeking leave to reopen and adduce evidence following an appeal and remitter from the Court of Appeal. In that matter, Biscoe J considered that there were two principles of particular importance when considering the motion (at [34]-[35]):

34. The first is the principle of finality. When an appeal from this Court on a question of law is allowed and the proceedings are remitted to this Court for determination in accordance with the decision of the Court of Appeal – as occurred in this case – the public interest in the finality of litigation firmly constrains the discretion to thereafter admit additional evidence or to allow additional issues to be raised. The undisputed findings in evidence stand and all that is called for is the determination of the outstanding issues on the existing evidence unless the errors of law found on the appeal otherwise require or, exceptionally, other circumstances make it appropriate: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178, 168 LGERA 1 at [85]-[88] and [118] approving Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282 at [24]-[25] (Biscoe J); Perilya Broken Hill Limited v Valuer-General (No 5) [2015] NSWLEC 20 at [22]. A successful appeal on a question of law does not redefine the original hearing as a warm-up for the main event on the remitter.

35. The second principle concerns the Court’s statutory duties of expedition. The proceedings are in Class 3 of the Court’s jurisdiction, which are required to be conducted “with as much expedition as the requirements of this Act and of every other relevant enactment and as the proper administration of the matters before the Court permit”: s 38(1) Land and Environment Court Act 1979. Further, the Court is bound to seek to give effect to the facilitation of the quick, as well as the just and cheap, resolution of the real issues in dispute when it exercises any power under the Civil Procedure Act 2005 and the rules of court: s 56 Civil Procedure Act.”

(Respondent’s written submissions, 22 June 2020, pp 3, 4)

35. Ms Reid argues that the Applicant’s request to reopen and amend their development applications should be refused on the following grounds:

1. It was put to the Applicant in the Council’s Amended Statement of Facts and Contentions, and in the opening arguments of the Council in the original hearing of the matter, that there was insufficient information before the Court to assess the impact of the proposed upgrade works in North Creek Road. Despite this the Applicant chose not to tender any evidence to address this nominated shortfall. Further, Ms Reid argues that the Doyle Affidavit does not seek to give any reason why evidence in relation to North Creek Road was not adduced prior to or during the hearing.

2. Further in the original proceedings, the Applicant made a forensic decision not to call expert evidence from a services engineer in relation to the provision of water and sewer ground, nor to amend the ASSMP.

3. This decision was made by the Applicant despite Council maintaining the following contentions in the Amended Statement of Facts and Contentions:

“Contention 7: SEPP Housing for Seniors and People with a Disability 2004

7.2 (ii) The amended Development has not been accompanied by written evidence, in accordance with the provisions of Clause 28, to enable the consent authority to form the requisite state of satisfaction that that (sic) the proposed housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewerage.

…

Contention 33: Acid Sulfate Soils

33.1 The revised Acid Sulfate Soils Management Plan, prepared by ENV solutions, dated April 2019, does not provide an adequate assessment of the proposed development/.

33.2 Particulars:

(i) The revised Acid Sulfate Soils Management Plan has not considered the management of acid sulfate soils or monosulfidic black oozes (MBO’s) in relation to the works proposed within and adjacent to the western creek line.

(ii) The revised Acid Sulfate Soils Management Plan has not considered the construction of a new access road for the amended Development or any works that are required for the amended development within or adjacent to North Creek Road.

…”

(The Huegill Affidavit)

4. Ms Reid makes the following further submissions in relation to the ASSMP ground:

“The Applicant did not seek to adduce any evidence from a soil scientist and at no time during the proceedings identified that it was required or that it would be prejudiced without such evidence. The Court’s practice note for class 1 appeals at [24] encourages the parties to consider whether expert evidence is genuinely necessary to resolve the issues in dispute. The Council’s contention was framed as ‘insufficient information’. It made clear the information required was in relation to the creek line. The Applicant filed contentions in reply confirming, in its opinion, that there would be no impact. The applicant prepared an amended [ASSMP] plan and the Council did not object to leave being granted to rely on it in the first day of the hearing. The Applicant made a forensic decision not to address the creek line.”

(Respondent’s written submissions, 22 June 2020, p 10)

5. Ms Reid concludes that the Applicant has been given adequate opportunity to prepare an ASSMP that addressed all the works and it should not be permitted on remitter to reopen to address the issue.

Scope of the Remitted Proceedings

36. Ms Reid submits that on remitter the Commissioner must address the following matters:

1. The likely impact of the construction of road and infrastructure works in the North Creek Road Reserve including on the Endangered Ecological Community of Coastal Wetland and an Aboriginal archaeology site pursuant to s 4.15(1)(b) of the EPA Act is required to be considered as part of the application and an assessment of the likely impacts of the construction of the road and infrastructure works in North Creek Road. (‘The likely impacts ground’).

2. Form an opinion of satisfaction in relation to cl 28(1) of SEPP HSPD. The Court must have written evidence that the development will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage. (‘The provision of water and sewer ground’).

3. That cll 15B(1) and 15C of the State Environmental Planning Policy No 62—Sustainable Aquaculture must be considered as a focal point of the Court’s consideration and determination of the development application. (’The impact on aquaculture ground’).

4. That an acid sulfate soils management plan that addressed the whole of the development is required to be submitted prior to determination as it is a jurisdictional precondition of cl 7.1(3) LEP 2012. (‘The Acid Sulphate Soils Management Ground’).

5. The consideration of the development application must give appropriate weight to State Environmental Planning Policy (Coastal Management) 2018 as an instrument applicable to the subject land. (‘The Coastal Management SEPP ground’).

(Respondent’s written submissions, 22 June 2020, p 5)

Applicant’s submissions on the grounds of appeal

37. Ms Reid does not accept the position put by Mr Hemmings that the impact on aquaculture ground can be addressed on remitter without the need for additional information. It is her submission that this ground intersects with the Acid Sulphate Soils Management Plan ground and as such would require assessment of any additional evidence or updated ASSMP.

38. Further, Ms Reid does not accept the submission of Mr Hemmings that the Acid Sulphate Soils Management Plan ground requires expert evidence in relation to the ASS Manual. Ms Reid argues that this was not the deficiency identified by the decision in Palm Lake v Ballina, rather the deficiency was that there was no assessment of the works external to the site.

39. In relation to the Likely Impacts ground Ms Reid argues that s 4.15(1) of the EPA Act always required an assessment of the likely impacts of the proposed development and it was always a factual question before the Court in the original proceedings whether the works in North Creek Road were remote or not and therefore whether the likely impacts need to be considered.

40. Similarly, in relation to the provision of water and sewer ground Ms Reid does not agree with the submission of Mr Hemmings that the decision in Palm Lake v Ballina the Court took a stricter approach than in Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297. Rather, Ms Reid argues that, consistent with Crighton Properties Pty Ltd v Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297 , the Court held it was a matter of fact and degree how much information is required and that in determining the application in the original proceedings the commissioner was not able to be satisfied that the precondition was met.

Overall submissions on the Notice of Motion

41. Ms Reid submits that in the Court’s Class 1 jurisdiction the Applicant bears the persuasive burden to provide the Court with information and arguments that the relevant environmental impacts can be addressed: Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]. The Council made its concerns, including in relation to the jurisdictional preconditions to the grant of consent, known to the applicant prior to the original hearing.

42. Relying on the procedural history of the matter as detailed in the Huegill Affidavit, the Court should give weight to the opportunities provided them already by the Court to both amend their development application (on six previous occasions) and to reopen the hearing the case after the completion of the hearing.

43. That the Court should give weight to the comments of Biscoe J in Perilya v Valuer General (No. 8) that “…a successful appeal on a question of law does not redefine the original hearing as a warm-up for the main event on remitter.”

44. Ms Reid notes that the directions sought in the Notice of Motion do not disclose the type or extent of information that will be required to be submitted. Based on the Respondent’s understanding of the subject site Ms Reid submits it is likely to at least include the following:

“(a) Detailed civil engineering and stormwater drawings;

(b) An Aboriginal cultural heritage report, including engagement with local communities;

(c) An arboricultural assessment of the trees that will be impacted by the road works;

(d) An ecological assessment of the works which may include impacts on endangered ecological communities and coastal wetland which may include a BDAR or species impact statement;

(e) an assessment of the impact of stormwater run off on the Priority Oyster Area adjacent to the road. The Doyle affidavit is silent on whether additional information will be adduced to address clauses 15B(1) and 15C of State Environmental Planning Policy 62- Sustainable Aquaculture from the development proper to address the findings of Preston CJ.”

(Respondent’s written submissions, 22 June 2020, p 9)

45. Ms Reid concludes that the concomitant uncertainty of the details of the amendments, the relevant expertise to address the amendments and their availability does not favour the grant of the Notice of Motion.

46. Further, Ms Reid argues that such additional information would likely need to be notified to residents and may need to be referred to the NSW Office of Environment and Heritage, NSW Department of Primary Industries, Natural Resources Access Regulator, NSW Roads and Maritime and the JALI Local Aboriginal Land Council and local Aboriginal families.

47. Ms Reid does not accept the submission of Mr Hemmings that the decision of the Court in Ballina v Palm Lake is a clarification or a novel application of the law.

48. That the Court should give weight to the principle of finality in determining the motion. Ms Reid argues that many of the issues upheld by the Ballina v Palm Lake decision were matters put by the Council in their Amended Statement of Facts and Contentions. Relying on Perilya v Valuer General (No. 8) at [33]-[35], Ms Reid argues it was a decision of the Applicant to not tender evidence to address those matters in the original hearing of the matter and that they should not now be given that opportunity on remitter.

49. Granting the Notice of Motion, which includes leave to reopen and adduce, as yet undefined evidence, would be contrary to the statutory intention of s 38(1) of the Land and Environment Court Act 1979 (‘LEC Act’) and ss 56, 57, 58 and 66 of the CP Act.

50. Ms Reid submits that the Court should dismiss the Applicant’s Notice of Motion.

Findings

51. The provisions of the CP Act relevant to my determination on the Applicant’s Notice of Motion are extracted below and at paragraph [31]:

56 Overriding purpose (cf SCR Part 1, rule 3)

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

…

58 Court to follow dictates of justice

(1) In deciding—

(a) whether to make any order or direction for the management of proceedings, including—

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

…

66 Adjournment of proceedings (cf Act No 11 1970, section 75)

(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.

(2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time.

52. Section 38 of the LEC Act at sub cl (1) states: “Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.”

52. Having regard to the background to the proceedings and following a consideration of the parties’ submissions which I have briefly outlined, I have determined that it is not appropriate to grant the Notice of Motion sought by the Applicant. My reasoning is as follows:

1. The overriding purpose of the CP Act is directed to the resolution of the real issues in the proceedings. The proceedings currently before the Court are Class 1 proceedings that have been remitted following a successful appeal by the Respondent of the Court’s original decision in Palm Lake Works Pty Ltd v Ballina Shire Council [2019] NSWLEC 1479. The proceedings arose from the Applicant lodging an appeal against the deemed refusal of its development application by the Respondent in accordance with the provisions of s 8.7 of the EPA Act. It is therefore the development application, as subsequently amended, that is the focus of the proceedings. I am not persuaded by Mr Hemmings submissions that this purpose should be balanced with the overall timeframe for the resolution of the appropriate development of the subject site.

2. In terms of the remitter I am satisfied the real issue to be resolved in the proceedings is to redetermine the matter according to the reasons for judgment given by Preston CJ in Ballina v Palm Lake. When the remitted proceedings are viewed in this light, I am satisfied that granting the Notice of Motion does not further the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. In forming this determination, I have given consideration the overriding purpose identified in s 56(1) and the dictates of justice as required by s 58 of the CP Act (which include a mandatory consideration of the objects of case management as outlined in s 57 of that Act).

3. I accept and adopt the submissions of Ms Reid in relation to the vacation of the hearing dates at [33]. I am also satisfied that in the circumstances, including the proximity of the hearing dates, the vacation of the hearing an the adjournment of the matter would be contrary to the efficient use of judicial and administrative resources.

4. Further, I am not persuaded by the submissions of Mr Hemmings that it is appropriate to grant leave to the Applicant to re-open its case and grant leave to the rely on new documents, evidence and plans. I accept Ms Reid’s submissions that a number of the appeal grounds upheld in Ballina v Palm Lake were matters contended by the Respondent. I am satisfied that the contentions raised by the Council were open to the Applicant to address, by for example the provision of amended plans or additional information, during the original proceedings.

5. In balancing the fairness to the Applicant with the fairness to the Respondents I am satisfied that the request of the Applicant to re-open the case should not be granted. I accept the submissions of Ms Reid at [35] and adopt her reasoning. Such a determination is consistent with the determination of the Court in Starray Pty Ltd v The Council of the City of Sydney (2001) 112 LGERA 438; [2001] NSWLEC 38 at [49] and Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at p 266.

6. I accept the submission of Ms Reid that the scope of Notice of Motion lacks definition. I find that the lack of clarity of the scope, extent and form of the documents, plans and evidence for which the Applicant seeks leave for weighs against the grant of the Notice of Motion.

54. Having considered all the submissions put, on balance I am satisfied that the appropriate course of action to facilitate the quick, just and cheap resolution of the issues in the remitted proceedings is for the Notice of Motion to be dismissed.

Orders

55. The orders of the Court are:

1. The Applicant’s Notice of Motion filed on 17 June 2020 is dismissed.

2. The hearing date of 8 July 2020 is confirmed.

………………………………..

D M Dickson

Commissioner of the Court

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Decision last updated: 29 June 2020