Parkesbourne Mummel Landscape Guardians Inc v Minister for Planning
[2009] NSWLEC 101
•26 June 2009
Reported Decision: 170 LGERA 118
Land and Environment Court
of New South Wales
CITATION: Parkesbourne Mummel Landscape Guardians Inc v Minister for Planning [2009] NSWLEC 101 PARTIES: Parkesbourne/Mummel Landscape Guardians Inc (Applicant)
Minister for Planning (First Respondent)
Director-General, Department of Planning (Second Respondent)
Epuron Pty Ltd (ACN 104 503 380) (Third Respondent)
Gullen Range Wind Farm Pty Ltd (ACN 129 017 787) (Fourth Respondent)FILE NUMBER(S): 41288 of 2008 CORAM: Lloyd J KEY ISSUES: PRACTICE AND PROCEDURE :- notice to admit facts - motion to set aside - whether notice oppressive - whether facts sought to be admitted irrelevant - abuse of process LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 75C
Civil Procedure Act 2005 s 14 and s 61(1)
Uniform Civil Procedure Rules 2005 Pt 2 r 2.3(e); Pt 17 r 17.4 and Pt 42 r 42.8CASES CITED: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Multigroup Distribution Services v TNT Australia Pty Ltd [2001] FCA 227
McGuirk v the University of New South Wales [2009] NSWSC 253
PNJ v The Queen [2009] HCA 6, 83 ALJR 384
Rogers v The Queen (1994) 181 CLR 251DATES OF HEARING: 18 June 2009
DATE OF JUDGMENT:
26 June 2009LEGAL REPRESENTATIVES: Applicant:
G A F Connolly (barrister)
Solicitors:
Colin Biggers & PaisleyFirst & Second Respondents:
Third and Fourth Respondents:
N/A
Solicitor:
Christine Hanson
Department of Planning
Mr C R Ireland (barrister)
Solicitors:
Middletons
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Lloyd J
Friday, 26 June 2009
LEC No. 41288 of 2008
PARKESBOURNE/MUMMEL LANDSCAPE GUARDIANS INC v MINISTER FOR PLANNING & (3) ORS [2009] NSWLEC 101
JUDGMENT
1 HIS HONOUR: On 26 February 2008, the first respondent, the Minister for Planning, declared a proposal for a wind farm, known as the Gullen Range Wind Farm Project, to be a critical infrastructure project under s 75C of the Environmental Planning and Assessment Act 1979. The applicant is an incorporated association of residents and ratepayers having the objective of protecting and preserving the environment and the landscape beauty of all land within the Goulburn Mulwaree and Upper Lachlan Shires and the lifestyle and general amenity of members and the general community.
2 The applicant has commenced proceedings for a declaration that the wind farm project is not a critical infrastructure project, a declaration that the environmental assessment for the project is invalid and for consequential relief.
3 On 21 May 2009, the applicant served a notice to admit facts on the solicitors for the third and fourth respondents, Epuron Pty Ltd and Gullen Range Wind Farm Pty Ltd, the proponents. The notice seeks admissions that no agreements have been made with various named landowners to host turbines on their respective landholdings. The third and fourth respondents now apply by notice of motion to set aside the applicant’s notice to admit facts.
4 Rule 17.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”) enables a party to serve a notice on another party requiring that other party to admit, for the purposes of the proceedings only, the facts specified in the notice. If the party receiving the notice does not, within 14 days after service of the notice, serve a notice disputing facts, these facts are, for the purposes of the proceedings only, taken to have been admitted.
5 A notice to admit facts has significant costs consequences. If the third and fourth respondents were to serve a notice disputing facts, but the applicant nevertheless is able to prove the facts sought to be admitted, then the third and fourth respondent could become liable to pay the applicant’s costs of proving those facts, assessed on an indemnity basis: UCPR, Pt 42 r 42.8.
6 The court has power to set aside a notice to admit facts served pursuant to Pt 17 r 17.4. There are three sources of power:
(a) Section 14 of the Civil Procedure Act 2005:
- “ In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case .”
(b) Section 61(1) of the Civil Procedure Act:
- “ The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings .”
(c) Rule 2.3(e) of the UCPR which enables the court to give directions or make orders relating to the making of admissions.
7 Mr C R Ireland, appearing for the third and fourth respondents, submits that there are three grounds why the notice to admit facts should be set aside:
Firstly , the notice seeks admissions of fact that are not relevant to any issue in the proceedings.
Thirdly , it is an abuse of process to require a party to make public confidential information which is extraneous to the proceedings.Secondly , the notice requires the disclosure of the identity of those third party landowners who have entered into private agreements or contracts with the third or fourth respondents, which is oppressive.
8 Mr G A F Connolly, appearing for the applicant, submits that the notice is relevant to a number of issues raised in the points of claim and in the third and fourth respondents amended points of defence. Mr Connolly further submits that the notice is relevant to the issue of whether the proposed wind farm is a critical infrastructure project within the meaning of s 75C of the Act.
9 The following issues raised in the points of claim are said to be relevant. Firstly, par 16(a) alleges that the project would include the construction of up to 84 wind turbines. Mr Connolly submits that this would be impossible if there are no hosting agreements with the landowners on whose land the wind turbines will be sited. Secondly, par 17(a) includes, inter alia, an allegation that the environmental assessment provided by the fourth respondent’s consultant does not identify the location of any wind turbines, contrary to the Director-General’s requirements, whose requirements will not be made out if there are no hosting agreements with landowners. Thirdly, par 22(a) is an assertion that the Director-General purported to confirm that the project was a critical infrastructure project for the purpose of the Minister’s declaration. Mr Connolly submits that if there are no assessment agreements or hosting agreements with landowners enabling the construction of wind turbines, then the project cannot meet the requirements of the Minister’s declaration and cannot be a critical infrastructure project. Fourthly, par 23(a) asserts that the project is not a critical infrastructure project on the ground that, in part, there is no final selection of the location of the wind turbines. It is submitted that if the third and/or fourth respondents have no agreements with landowners enabling the construction of wind turbines as described in the environmental assessment, then there is no basis for the asserted wind turbine locations shown in the environmental assessment.
10 The following issues raised in the third and fourth respondents amended points of defence are also said to be relevant. Firstly, par 17(d) asserts that the environmental assessment provides a detailed description of the locations and coordinates of the turbines. Mr Connolly submits that if there are no agreements with landowners enabling the construction of wind turbines on their properties as identified in the environmental assessment, then there is no basis for the asserted locations in the environmental assessment. Secondly, in par 28 (a) the third and fourth respondents say that the project is a critical infrastructure project within the meaning of Pt 3A of the Act because it meets the minimum generating capacity of 250 megawatts. Mr Connolly submits that if the third and/or fourth respondents have not executed assessment agreements or hosting agreements with the landowners, then no wind turbines can be hosted and the required generating capacity could not be reached, so that the project cannot be a critical infrastructure project. Thirdly, par 28(e) contradicts the applicant’s par 23(a), noted above, asserting that while the project application does not specify locations of the turbines, the environmental assessment does specify locations and coordinates of the turbines according to the proponents’ preferred layout. Mr Connolly submits that in the absence of an assessment agreement or hosting agreements with landowners enabling the construction of wind turbines, there is no basis in fact for the asserted locations. Fourthly, par 33 (a) to (c) again assert that the project is a critical infrastructure project for the generation of electricity and having a capacity of at least 250 megawatts, and as a result, the applicant is precluded from commencing and continuing these proceedings without first applying for and obtaining the Minister’s approval under s 75T of the Act.
11 The power of the court to set aside a notice to admit facts, noted in par [6] above, is sufficient to distinguish the judgment of Gyles J in the Federal Court in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [2001] FCA 227. In that case, Gyles J, in refusing a motion to strike out certain paragraphs of notices to admit facts, was unable to identify any statutory provision for objection to any notice. His Honour did not need to consider whether, in a special case, a notice to admit facts may be set aside as vexatious in the exercise of the inherent jurisdiction of the court. The Civil Procedure Act and the UCPR, to which I have referred, overcome the difficulty identified by Gyles J.
12 In McGuirk v the University of New South Wales [2009] NSWSC 253, Simpson J set aside two notices to admit facts on the ground that, in the circumstances, they were an abuse of process.
13 The categories of abuse of process are not closed: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [9]. They usually, however, fall into one of three categories: (i) the court’s procedures are invoked for an illegitimate purpose; (ii) the use of the court’s procedure is unjustifiably oppressive to a party; or (iii) the use of the court’s procedures would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286 per McHugh J. His Honour added that any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process. In Batistatos, it was held at [15], that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious.
14 Similarly, in PNJ v The Queen [2009] HCA 6, 83 ALJR 384, the High Court held, at [3], that it is not possible to describe exhaustively what will constitute an abuse of process, and accepted that many cases of abuse of process will exhibit at least one of the three characteristics identified by McHugh J in Rogers v The Queen.
15 In the present case, as noted in par [2] above, the applicant asserts that the proposed wind farm is not a critical infrastructure project for the purpose of the Minister’s declaration made under s 75C of the Act and that the environmental assessment for the project is invalid. I thus accept Mr Ireland’s submission that the notice to admit facts is directed to the possibility of implementing the project, as distinct from the approval process. It is the latter which is in issue. The question of whether there are any executed assessment agreements or hosting agreements with any landowner is not relevant, having regard to the relief claimed in the amended summons and the allegations in the points of claim. The existence or non-existence of any such agreements relates solely to the ability to implement the approval, if granted. Moreover, no landowner’s consent is required for a critical infrastructure project: cl 8F, Environmental Planning and Assessment Regulation 2000. It is the nature of the proposed project itself and its classification which is in issue.
16 The irrelevancy of the facts for which the applicant seeks admissions, coupled with the need, in answering the notice, for the third and fourth respondents to disclose whether and if so what private agreements have been made with particular landowners, which information would become public knowledge, is in my view, both inappropriate and oppressive. As Mr Ireland submits, such disclosure could expose those individuals who support the project to unfair contact or targeting by members of the applicant who oppose the project.
17 The notice seeks admissions for an illegitimate purpose in the sense of being irrelevant to any issue in the proceedings. Although the notice to admit facts is a procedural step, that does not disqualify it from amounting to an abuse of the court’s process, as noted in par [13] above. The notice to admit facts in the present case being both an illegitimate purpose and being oppressive, amounts to an abuse of the court’s process. The notice will be set aside with costs. The formal orders are:
(1) The applicant’s notice to admit facts dated 21 May 2009 is set aside.
(3) The exhibit may be returned.(2) The applicant must pay the costs of the third and fourth respondents’ notice of motion dated 4 June 2009.
I hereby certify that the preceding 17 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.
Dated: 26 June 2009Associate
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