Palm Lake Works Pty Ltd v Tweed Shire Council

[2024] NSWLEC 144

Land and Environment Court

New South Wales

Medium Neutral Citation:

Palm Lake Works Pty Ltd v Tweed Shire Council [2024] NSWLEC 144

Hearing dates:

19 December 2024

Date of orders:

23 December 2024

Decision date:

23 December 2024

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [65]

Catchwords:

PRACTICE AND PROCEDURE — Land and Environment Court — Application to vacate hearing dates — Court’s discretion to review registrar’s decision — Change in circumstances and late application raised by applicant — Where Council has not marshalled evidence in anticipation of matters now raised by applicant — Where Council not responsible for applicant’s position — Consideration of interests of justice — Hearing dates vacated

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60

Local Government Act 1993 (NSW), s 68

Tweed Local Environmental Plan 2014, cl 7.10

Cases Cited:

Georges River Council v Eskander [2024] NSWLEC 98

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

Texts Cited:

Practice Note – Class 1 Development Appeals

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
A Gadiel, solicitor (Applicant)
P Hudson, solicitor (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/00260927

Publication restriction:

Nil

JUDGMENT

1. HIS HONOUR: By notice of motion filed on 19 December 2022, Palm Lake Works Pty Ltd (‘Palm Lake’), the applicant in these Class 1 appeal proceedings commenced on 16 August 2023, seeks a review of a decision made by the Senior Deputy Registrar of the Court on 18 December 2024 to refuse Palm Lake’s application to vacate the hearing dates of these proceedings which are set down (along with related Class 2 proceedings) for hearing on 17 to 21 February 2025.

2. Mr A Gadiel, solicitor, appears for Palm Lake and Ms P Hudson, solicitor, appears for Tweed Shire Council (‘Council’) which opposes the relief.

3. The Senior Deputy Registrar heard Palm Lake’s application on 18 December 2024, and promptly gave a considered judgment on that day dismissing the motion.

4. The Senior Deputy Registrar carefully dealt with the application to vacate on the evidence then before the Court and noted, inter alia (in accordance with the Court’s Practice Note – Class 1 Development Appeals, (95)), that applicants (such as Palm Lake) are expected to be ready to proceed with their development appeal when commenced and, further, that applications to vacate hearing dates are subject to the balancing of the well-known principles and the dictates of justice contained in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) which, on the evidence before her, she found did not favour vacation.

5. The Senior Deputy Registrar’s findings are an exercise in discretion with which a Court on appeal would be reluctant to set aside.

6. In the appeal now before me, the evidence (including evidence not before the Senior Deputy Registrar) is extensive and comprises four affidavits from Ms Khoupongsy, Palm Lake’s employed solicitor, being her affidavits of 10 and 16 December 2024, and her two affidavits of 19 December 2024. No evidence was filed by Council.

7. The affidavits proffer various explanations for the delay in Palm Lake’s preparation of the Class 1 appeal as well as an attempt, with which I will deal in due course, to shift some blame to Council in relation to the position in which Palm Lake now finds itself.

8. In her affidavit of 10 December 2024 (which occupies, with annexures, some 75 to 80 pages), Ms Khoupongsy deposes to uncontentious background facts which I do not recite, except to note that the hearing(s) for which vacation is now sought comprises a consolidation of these Class 1 proceedings and, as will be seen, the more recently commenced Class 2 proceedings.

9. Palm Lake’s development application lodged with Council on 19 June 2020 sought consent for civil works (including bulk earthworks); a stormwater management system and roads; the construction and use of an environmental facility; and the subdivision of the subject land into 13 lots by way of community title at 40 Creek Street, Hastings Point (‘site’).

10. Council refused Palm Lake’s application on 8 August 2020. At that time, Council had before it an internal “Council officer assessment” which recommended approval of the application subject to conditions.

11. After the commencement of these Class 1 proceedings, a conciliation was held before Commissioner Bish on 15 March 2024 which was unsuccessful.

12. On 7 November 2023, Palm Lake sought the Secretary’s environmental assessment requirements (for the preparation of an environmental impact statement) (SEARs) from the Department of Planning and Environment, because a concern had arisen that the proposed development constituted designated development (and therefore required an environmental impact statement).

13. Palm Lake subsequently sought leave to amend the Class 1 application on two occasions, being 18 June 2024 and 3 September 2024.

14. One application responded to a decision of Preston CJ of LEC in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77, where the Court found that a subdivision that included but did not fragment certain mapped coastal wetland was not designated development. As this decision meant that the proposed development would not constitute designated development, Palm Lake filed a notice of motion to further amend the development application to rely upon a statement of environmental effects in lieu of an environmental impact statement.

15. On 6 September 2024, the Court, having granted Palm Lake leave to amend its development application, set down these Class 1 proceedings for hearing on 17 to 21 February 2025.

16. Despite the above, on 25 September 2024, Palm Lake lodged a separate application with Council for an approval under s 68 of the Local Government Act 1993 (NSW) to carry out certain water supply and sewerage works associated with the proposal (‘s 68 application’). Palm Lake maintains that these works had been “documented” in the development application the subject of the Class 1 appeal.

17. On 29 October 2024, Council filed an amended statement of facts and contentions (amending an earlier iteration dated 6 October 2023) in these Class 1 proceedings which, as will be seen, raised concerns (inter alia) in relation to road upgrade works.

18. On 11 November 2024, Palm Lake commenced Class 2 proceedings in relation to Palm Lake’s s 68 application and, on that day, also filed a notice of motion in those Class 2 proceedings seeking to consolidate the Class 1 and Class 2 proceedings such that the Class 2 proceedings could be heard with the Class 1 proceedings which, as noted earlier, had been set down for hearing on 17 to 21 February 2025.

19. On 12 November 2024, Council filed a further amended statement of facts and contentions in the Class 1 proceedings and on 25 November 2024, the Court made orders consolidating the two sets of proceedings and in relation to the preparation of evidence for the hearings.

20. Ms Khoupongsy records Palm Lake’s concerns thereafter arising in relation to whether a biodiversity development assessment report (‘BDAR’) (which was apparently required to support the proposal) was required to be a “fulsome” BDAR, or whether it could be based upon a more “streamlined” assessment. Her evidence, based on the available information and her belief, was that Dr Meers, the expert ecologist retained for Palm Lake in relation to the Class 1 proceedings, had informed Palm Lake’s solicitors that he was unable to confirm whether a full BDAR was required. This concern initially triggered the present application for vacation of the hearing dates because of Dr Meers’ opinion that, if a “full” BDAR was required, detailed ecological surveys would be needed which would take some months to complete.

21. Ms Khoupongsy’s further affidavit of 16 December 2024 relates primarily to the Class 2 proceedings and outlines the relationship between the Class 1 and Class 2 proceedings, with reference to various plans and drawings. That affidavit also raises matters concerning what Ms Khoupongsy states as “Council’s delay in raising issues concerning water supply works and the roadworks”. In particular, she refers to drawings C100, C500, C501, C600 and a traffic report (which were part of Palm Lake’s development application) which addressed various matters relating to water supply and roadworks located outside the subject lot, which needed, on Palm Lake’s case, at least to be considered – even if not approved – as part of the assessment of the development application. These works related to the s 68 application.

22. Ms Khoupongsy deposes that Palm Lake’s civil engineer had informed Palm Lake’s solicitors that there had been “negotiation” with Council officers some time earlier in relation to the (then) proposed water and sewerage works and that prior to the commencement of these proceedings, Council officers had advised that the application (and proposed works) satisfied all matters in relation to cl 7.10 of the Tweed Local Environmental Plan 2014 (‘LEP’) (which deals with the provision of essential services and whether or not Council, as the consent authority, is satisfied that there was sufficient information to demonstrate that a proposed development would be serviced by the requisite essential services, in particular, water and sewerage networks).

23. In summary, Palm Lake’s more recent evidence was that the primary basis of the present application for vacation was (now) Council’s delay in (more recently) raising issues in relation to the water supply works and roadworks (as well as concerns regarding the marshalling of the ecological evidence referred to earlier).

24. The Court was drawn to various references in Council's earlier internal assessment report prepared in June or July 2023 (prior to Council's refusal of the development application on 8 August 2023) and the fact that Council's statement of facts and contentions filed 6 October 2024 did not raise specific concerns in relation to cl 7.10 of the LEP or issues in relation to the design of the proposed water supply.

25. As a result of Council's amended statement of facts and contentions filed 29 October 2024 in the Class 1 proceedings raising concerns in relation to the road design upgrades as well as concerns in relation to the specific works to be undertaken which related to Council’s own infrastructure on Creek Street and Tweed Court Road, Palm Lake’s solicitors sent an email to Council on 2 December 2024 expressing Palm Lake’s concern that these various concerns had not been raised earlier.

26. Apart from the above matters, Palm Lake submits that in Council’s statement of facts and contentions in reply filed 10 December 2024 in the Class 2 proceedings, matters were raised which had not been raised in the earlier dealings and discussions regarding the design and location of the water works.

27. Ms Khoupongsy deposes that Council’s statement of facts and contentions in reply filed 10 December 2024 in the Class 2 proceedings brought to Palm Lake’s attention that Council's existing water structure in the roads which I have mentioned, and particularly in relation to a 45-metre section of what was considered to be a 100-millimetre main, had in fact been recently upgraded by Council to a 150-millimetre main. Palm Lake maintains that this water structure upgrade was unknown to Palm Lake and affected, in a material way, Palm Lake’s evidence supporting its proposed development. This fact, combined with the concern raised in relation to cl 7.10 of the LEP and Council’s contention that the drawings submitted with the s 68 application were inadequate, led Ms Khoupongsy to depose that it was her belief that Council had an obligation to raise the asserted deficiencies and/or other matters in these proceedings.

28. For reasons which I will come to in due course, I do not place significant weight upon Palm Lake’s solicitor's view that Council had such an obligation, but the fact was and remains that for whatever reason Palm Lake was unaware of those matters and as a result of the matters noted above, it maintains that it needs time to redesign some aspects of its development application, and, in particular, to amend the civil engineering drawings to reflect Council’s more recent upgrades of its infrastructure works.

29. Palm Lake’s evidence is that it would take 13 weeks to prepare this material and there is insufficient time for this to be undertaken prior to the allocated hearing dates, and Palm Lake’s submits that it is due to Council's “failure” that this situation has arisen.

30. I note that subsequent to the matter being before the Senior Deputy Registrar, two further affidavits of Ms Khoupongsy were filed on 19 December 2024 updating her earlier affidavits based on new information superseding the earlier evidence. The effect is that the length of time required to marshal Palm Lake’s evidence is now reduced in relation to concerns regarding the preparation of Palm Lake’s ecological and civil engineering evidence.

31. The evidence now before the Court is that the civil engineering evidence would be completed by 31 January 2025 and that other material (including a review of environmental factors) would be completed by 19 February 2025, and further ecological and arborist reports would be prepared by 14 February 2025.

32. Council has not filed evidence.

33. Mr Gadiel and Ms Hudson each made detailed submissions.

34. Mr Gadiel submits that the essential question is whether or not the hearing dates should be vacated and refers the Court to the more recent evidence which was not before the Senior Deputy Registrar, to the effect that it now appears that the hearing would not need to be adjourned for as long as previously proposed.

35. Mr Gadiel noted that there was no evidence in relation to Council’s position (including any prejudice) either before the Senior Deputy Registrar or before this Court.

36. Mr Gadiel informs the Court that these proceedings concern the sixth development application for the site and took the Court in some detail to the plans annexed to the affidavit of Ms Khoupongsy to show the concerns of Palm Lake in relation to its previous position where, as part of the proposed development, Palm Lake was intending to undertake certain drainage works that related to Council’s (then) infrastructure and to explain the concerns now raised in relation to Council’s recent upgrade of its works.

37. Mr Gadiel makes the submission that the works now proposed are significantly similar to the plans previously before Council. I take this as a reference to Council’s earlier assessment, which found that the matters in relation to water and the like were acceptable to Council and that Council officers were satisfied in relation to cl 7.10 of the LEP.

38. Mr Gadiel also referred to the Court’s recent decision in Georges River Council v Eskander [2024] NSWLEC 98 in relation to how a consent authority is to approach clauses similar to cl 7.10.

39. Mr Gadiel repeats that Council officers were satisfied with Palm Lake’s designs proposed on earlier occasions; that Palm Lake was not aware of the issues in relation to water and sewer until after the Class 1 proceedings were set down for hearing; and that Council’s concerns were raised for the first time on 10 December 2024 in Council’s statement of facts and contentions in reply (in the Class 2 proceedings). He points to the emails between the parties and maintains that, because of Council’s changed position, the engineering expert presently engaged on behalf of Palm Lake does not have the expertise to deal with the now raised engineering issues.

40. Mr Gadiel candidly submits that under the current timetable the material would not be ready for the hearing and that, in these circumstances, it is a matter of “procedural fairness” such that Palm Lake needs an opportunity to deal with the matters recently raised. He submits that the fundamental design issues could and should have been raised earlier by Council.

41. Ms Hudson, in careful and compendious submissions, acknowledges that there is now new updated factual material before the Court (not previously before the Senior Deputy Registrar) in the form of the further affidavits, but submits that this should not persuade the Court to change the decision reached by the Senior Deputy Registrar.

42. Ms Hudson notes that, as the Senior Deputy Registrar had found, the application to vacate was “finely balanced” and submits that vacation is not in the interests of justice, and that the Senior Deputy Registrar had a full understanding of the history of the matter and the issues before the Court. In these circumstances, she submits that there was no error of law in relation to the conduct of the Senior Deputy Registrar and reminds the Court that as recently as 25 November 2024, detailed orders were made for expert evidence and preparation for hearing. These detailed orders (over eight pages) covered all the issues in dispute.

43. Ms Hudson asks the Court to note that the additional water and sewerage works the subject of Palm Lake’s current concerns were not, in Council's view, part of Palm Lake’s earlier development application. However, she accepts that on 10 December 2024 Palm Lake became aware of the issues that Council had in relation to the s 68 application (now part of the Class 2 proceedings).

44. Ms Hudson notes that the joint expert reports were due this week and that further evidence was due at the end of February 2025, in circumstances where those experts would have already made arrangements to proceed with their meetings and preparation of joint evidence.

45. Ms Hudson submits that Council's simple position is that the hearing dates (for the Class 1 appeal) were set down quite some time ago (on 6 September 2024) and repeats there has been no error of law made by the Senior Deputy Registrar, and that while there are new factual matters now raised, these do not address the Senior Deputy Registrar's concerns. Further, Ms Hudson submits that at the time Palm Lake filed its s 68 application with Council, there had been no earlier engagement with Council which should have been undertaken, and as such, Palm Lake did not wait to hear from Council but simply filed the Class 2 appeal and then pushed that matter to hearing with the Class 1 appeal.

46. Mr Gadiel, in reply, takes issue with the timing of the matters raised in Ms Hudson's submissions and notes that the two proceedings had been “merged” on 25 November 2024, and it was not until 10 December 2024 before any concerns in relation to cl 7.10 were raised (in Council’s statement of facts and contentions filed 10 December 2024 in relation to the Class 1 proceedings).

47. The principles governing the exercise of the Court's discretion to review a registrar's decision are well known. The principles were considered in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 at [12]-[13]; and the decision of the Court of Appeal in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [8]-[9], in terms which I adopt and do not repeat. More recently, in Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [52] Kirk JA described the Court’s power to review a registrar’s decision as follows: “The power of review is discretionary. A review does not require demonstration of error, although ‘[]there is an onus on a person seeking to have a court set aside or vary a registrar’s decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so[.’]”

48. In these circumstances having considered the background, and not without some concern and more particularly in the light of the evidence now before the Court, I have decided, albeit with some reluctance, to revise the Senior Deputy Registrar’s decision and vacate the hearing dates. My reasons may be briefly stated.

1. I consider that the position Palm Lake now finds itself in has been, to a certain extent, a result of its own conduct as it commenced the Class 2 proceedings well after the Class 1 proceedings had commenced (and had been set down for hearing) which was before Council's statement of facts and contentions were filed on 10 December 2024 in the Class 2 proceedings, which raised matters of which Palm Lake had not been aware. I also consider that Palm Lake’s decision to combine the two proceedings was a forensic choice which has ultimately led to the present application for the vacation of hearing dates.

2. I find that Palm Lake’s inability to determine whether at some stage a (more significant) BDAR may be required (or the extent to which certain surveys were required), which is not now the primary reason for the application to vacate, is again a matter for it and a matter of which it should have been aware.

3. Despite the above, I understand that circumstances have changed in relation to whether the proposal was (or should have been) characterised as designated development or otherwise, and moreover, I find that it is Palm Lake itself that should have been aware when it filed its Class 1 application of what was required to make good its claim in the sense of the evidence required.

4. Further, to the extent that what is before me now relates primarily to consideration of the interests of justice, in circumstances where there has been no proper compliance with the Court’s practice note, and where such non-compliance was clearly a basis of the Senior Deputy Registrar’s decision, I look at Palm Lake’s own conduct in relation to both the Class 1 and Class 2 proceedings and consider that Palm Lake’s lack of knowledge regarding Council’s (water infrastructure) upgrade works (in relation to the Class 2 proceedings) is not a matter that can be sheeted home to Council.

5. Despite all the above factors, I repeat that the evidence now before the Court (in relation to likely delay in the preparation for hearing) was not before the Senior Deputy Registrar. The present evidence is that the delay that would otherwise occur in relation to any adjourned hearing (which was earlier anticipated to be many months) is not as long as earlier anticipated.

6. To the extent that the Senior Deputy Registrar considered the matter was “delicately balanced”, I agree.

7. I accept that, given the time of the year, being the Christmas and January holiday period, the ability to marshal expert evidence is somewhat limited, albeit noting that there were detailed directions made (and orders given) some time ago in relation to such matters, meaning that even if the hearing dates are not vacated, there is little doubt that Palm Lake’s evidence would not be available (if it was available at all) until slightly before the allocated hearing dates which would put Council (and the Court) in an unenviable position.

8. Although I have difficulty accepting without some concern Palm Lake’s evidence as to its belief (or its solicitor’s belief) that certain matters in relation to the Class 2 proceedings (primarily in relation to Council’s requirements for certain piping works and the raising of concerns regarding compliance with cl 7.10 of the LEP) were not and could not have been anticipated, Council has not marshalled evidence opposing this material or raising any material of prejudice.

9. I accept that Council properly maintains its objection to the vacation. I also accept that the interests of justice are broader than the actual parties and require compliance with the whole of the planning system, including the practice of the Court.

10. While I consider the interests of justice weigh slightly in favour of Council’s opposition to vacation of the hearing dates, given the long history of proposals for the site and particularly the evidence now marshalled, and the fact that even if I was minded against Palm Lake’s late application, I anticipate that Council itself would be in some difficulty meeting the further evidence which I must accept on sworn evidence has been delayed.

11. I repeat that I am sympathetic to Council’s position in circumstances where I consider it has properly responded to the varying and changing circumstances raised (and now faced) by Palm Lake.

12. Let me be clear, Council has not, in my view, been responsible for Palm Lake’s position despite the attempts in Palm Lake’s submissions before me to suggest otherwise. I repeat that Palm Lake has made a number of forensic decisions not the least of which is bringing the s 68 application and then seeking, at a late stage, to have the subsequent Class 2 proceedings consolidated (even in circumstances where Palm Lake did not anticipate the raising of certain matters in Council’s statement of facts and contentions in reply).

13. I do not accept that Council had an obligation to inform Palm Lake in relation to Council’s “upgrade” of water and/or sewerage works, and find that Palm Lake should have made inquiries and been aware at the time of these works.

14. I also note the difficulty with Palm Lake marshalling sufficient ecological evidence in relation to the Class 1 appeal hearing, particularly the concerns in relation to the necessity for a BDAR. Nonetheless, I find that Palm Lake should have been aware of (and its experts should have anticipated) the evidence that was needed to support its application.

15. In any event, the facts are clear. Palm Lake is simply not ready or able to conduct its proceedings. “Uncoupling” the Class 1 and Class 2 proceedings could not be undertaken now given what I consider to be significant overlap between the issues now raised in each of the Class 1 and the Class 2 proceedings. Even if I was in favour of some form of uncoupling, that would simply have the effect of forcing Palm Lake to conduct its Class 1 proceedings in February 2025 and thereafter to conduct a further hearing in relation to the Class 2 proceedings in circumstances where, as much as practicable, all matters properly in dispute should proceed together. As such, the decoupling of the proceedings would not itself be in the interests of justice.

16. In my view, in the interests of justice and on the evidence now available, I consider, with some reluctance, that the findings of the Senior Deputy Registrar should be set aside and that the hearing dates should be vacated.

Orders

65. The orders I make are as follows:

1. The hearing dates of 17 to 21 February 2025 are vacated.

2. The parties are directed to confer and provide agreed orders for the further preparation of the hearings and matters.

3. The matters are listed for the first directions hearing before the Registrar in 2025.

4. Costs are reserved.

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Decision last updated: 06 May 2025