Pittwater Council v Ryan

[2016] NSWLEC 5

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pittwater Council v Ryan [2016] NSWLEC 5
Hearing dates:	12 February 2016
Date of orders:	12 February 2016
Decision date:	12 February 2016
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Respondent’s Notice of Motion dated 23 December 2015 is dismissed.  (2) The Council’s costs of the Notice of Motion dated 23 December 2015 are to be paid by Mr Ryan.
Catchwords:	PROCEDURE – suspension of timetable in civil enforcement proceedings to enable modification applications under s 96 of EPA Act not made – if granted modification applications will not resolve all substantive issues in the proceedings – costs not saved by suspension of timetable – proposal to make modification application made late in context of history of the land and the proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 58(1)(a)(ii) Environmental Planning and Assessment Act 1979 (NSW), s 124(3) Protection of the Environment Operations Act 1997 (NSW)
Cases Cited:	Casley v Wagga Wagga Shire Council [2010] NSWLEC 140 Sahade v The Owners – Strata Plan No 62022 and Ors [2006] NSWLEC 770
Category:	Procedural and other rulings
Parties:	Pittwater Council (Applicant) Daniel Patrick Ryan (Respondent)
Representation:	COUNSEL: A Stafford (Applicant) J Smith (Respondent)   SOLICITORS: King & Wood Mallesons (Applicant) Staunton & Thompson (Respondent)
File Number(s):	40949 of 2015

EX tempore Judgment ON NOTICE OF MOTION

1. Pittwater Council has commenced proceedings seeking declarations of unlawful development on a property in Ingleside owned by Mr Ryan, and of carrying out prohibited development as a waste or resource management facility. Extensive orders are sought in the Summons in relation to the use of the property, the installation of erosion and sediment control devices and the removal of imported materials on the site.

2. A Notice of Motion dated 23 December 2015 was filed by Mr Ryan seeking orders that the timetable be suspended and the matter stood over pending the lodging of two s 96 modification applications under the Environmental Planning and Assessment Act1979 (NSW) (“EPA Act”) with the Council. The Respondent proposes submitting two modification applications by 28 February 2016.

3. Parts of an affidavit of Mr Konsti, Council’s development compliance officer, dated 24 December 2015 were read by the Council. A plan showing areas of fill marked A, B, C and D attached to Mr Konsti’s affidavit was also provided to the Court. Parts of an affidavit of Mr Staunton Mr Ryan’s solicitor dated 22 December 2015 were also read. Mr Ryan tendered an aerial photo of the land.

4. Mr Ryan’s motion is made pursuant to s 124(3) of the EPA Act which states:

(3)   Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a)   adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b)   in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

5. Mr Ryan submitted that the modification applications if consented to by the Council will deal with the substantive issues in the proceedings and the orders are in the interests of the just, quick and cheap resolution of the matter. There is no urgency in resolving the issues in the Summons. The matters in dispute between the parties have been in dispute for some time. No action was taken by the Council for some seven months after the notice served on Mr Ryan under the Protection of the Environment Operations Act1997 (NSW) (“POEO Act”) in November 2014. There is no evidence of environmental harm such as sediment moving offsite. Mr Ryan is prepared to give undertakings that he will not bring further material onto the property and in accordance with orders sought in pars 3 (a) and (b) of the Summons with the caveat that fill on the property can be used to maintain the fire trail.

6. The Council opposes the Notice of Motion and submits that the declaration and orders in prayers 2 and 3 can’t be regularised. These address prohibited development of waste resource and management being conducted on the property relating to the crushing and sorting of waste material on site and the use of this material to fill land on the property. Of the four areas of fill identified on the plan in Mr Konsti’s affidavit only area A would potentially be addressed by the modification applications. The fill in areas B, C and D raise other legal concerns according to the Council. For example, areas C and D were carried out without development consent and are not ancillary to the fire trail. These cannot be regularised by the modification applications.

7. The management of the fire trail and fill on the land owned by Mr Ryan has a long history as attested to in the affidavit of Mr Konsti in par 104. A development consent was granted in 1994 to Mr Ryan for a fire trail and placement of additional fill on the land. Class 4 proceedings in relation to the placement of fill on the land were commenced in 1996 and resulted ultimately in contempt orders in relation to Mr Ryan. Numerous notices requiring erosion and sediment control works have been issued and not complied with over a lengthy period. Mr Ryan has been on notice since 1996 that earthworks require development consent. Numerous complaints from neighbours have been received and photographs at Tab 1 of the exhibit to Mr Konsti’s affidavit identify the nature of the works being undertaken on the site. These photographs show crushing of material with substantial equipment taking place on the land.

8. Further, Mr Ryan delayed in filing the Notice of Motion dated 23 December 2015 by which time the Council had filed much of its evidence. The applications were foreshadowed at a call-over on 20 November 2014. The undertakings offered by the Respondent are qualified in any event.

Consideration

9. The Court has the discretion to make the orders sought by the Respondent whether pursuant to s 124(3) of the EPA Act or as orders directed to case management. Under s 58(1)(a)(ii) of the Civil Procedure Act 2005 (NSW) a court must seek to act in accordance with the dictates of justice in granting an adjournment of proceedings.

10. An issue was identified by the Council of whether as a threshold issue s 124(3) requires recognition of a breach of the Act in order for an order to be made. No such recognition is proposed to occur as part of the orders sought by Mr Ryan. I do not need to resolve that question now in order to consider this motion. Such an issue was not identified in Sahade v The Owners – Strata Plan No 62022 and Ors [2006] NSWLEC 770 (“Sahade”). Sahade at [10] identified that s 124(3) is an important provision in the EPA Act in providing an opportunity to respondents to adjourn proceedings to enable a development application to be made assessed and determined under Pt 4.

11. A further rationale for the orders sought in Mr Ryan’s Notice of Motion is the avoidance of unnecessary costs, see Casley v Wagga Wagga Shire Council [2010] NSWLEC 140 at [9].

12. For the reasons given by the Council set out above in par 6, including in light of the extensive history of this matter over many years identified in Mr Konsti’s affidavit summarised in par 7, I do not consider it is appropriate to make the order sought in the Notice of Motion.

13. Primarily, substantive issues of prohibited development the Summons identifies will not be addressed by the modification applications. Three of four areas of fill of concern to the Council will remain for consideration by the Court. Attendant saving in costs if the matter is adjourned to enable the modification process to occur is not likely to be realised in this case. The qualified undertakings proffered by the Respondent’s legal representative are not a sufficient basis in these circumstances to make the order sought in the Notice of Motion.

14. Secondly, the proposal in the motion is that two modification applications be made by 28 February 2015. These modification applications could have been made much earlier with the Council investigating activities in relation to the most recent activity on the land the subject of the Summons since May 2014. I do not consider there was delay or inaction by the Council following the service of a notice on the Respondent under the POEO Act in November 2014 following which the Council was obtaining expert advice about the state of affairs on Mr Ryan’s land. That advice was received in February and March 2015. The Council’s solicitors wrote to Mr Ryan’s solicitors suggesting that any modification applications be lodged by the Respondent by letter dated 26 August 2015, prior to the commencement of proceedings on 23 October 2015.

Orders

15. Mr Ryan’s Notice of Motion dated 23 December 2015 is dismissed. As these are Class 4 proceedings costs generally follow the event. The Council’s costs of the Notice of Motion dated 23 December 2015 are to be paid by Mr Ryan.

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Decision last updated: 17 February 2016