Port Stephens Council v Moresload Pty Ltd

[2014] NSWLEC 61

Land and Environment Court

New South Wales

Medium Neutral Citation:	Port Stephens Council v Moresload Pty Ltd [2014] NSWLEC 61
Hearing dates:	16 May 2014
Decision date:	16 May 2014
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	Leave granted to the applicant to amend its Points of Claim.
Catchwords:	PRACTICE AND PROCEDURE: Application to make a late amendment to Points of Claim - principles to apply - discretion exercised - consequential amendments and vacation of hearing dates required.
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243 Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132
Category:	Procedural and other rulings
Parties:	Port Stephens Council (Applicant) Moresload Pty Ltd (First Respondent) Gregory John Gilson (Second Respondent) Lesley Helen Gilson (Third Respondent)
Representation:	Mr P Larkin, SC and L Thomas (Applicant) Mr T Howard, SC and C Novak (Respondents) Local Government Legal (Applicant) Mallik Rees Lawyers (Respondents)
File Number(s):	40723 of 2013

Judgment

Introduction

1. This is an application by the Council to further amend its claim against the respondents in respect of a quarry.

1. It raises difficult issues for the Court, in its discretion, but it is imperative that I give the decision now, as the case is currently listed to commence its four day trial on 2 June, and, if the Court grants leave to amend, that hearing will have to be vacated, and the respondents will suffer serious financial prejudice for however long the hearing is delayed.

1. The present Notice of Motion ("NOM") to amend was filed only on 9 May and referred to me today by the List Judge for urgent determination.

1. As a result of the urgency, these reasons are not as fulsome as I would like.

Background

1. The Council's original summons was filed on 20 September 2013, and amended, by consent, on 1 November 2013, and Points of Claim ("POC") were filed on 29 November 2013. Points of Defence ("POD") were filed on 10 March 2014, and the present hearing dates were set on 14 March 2014.

1. Today's NOM seeks leave to amend only the POC but, if it succeeds, it will be necessary for the applicant to amend also the Amended Summons; and new POD may well be needed as well.

1. The applicant's amended POC ("APOC") will rectify some typographical errors, which are not contentious, but will also add a new alternative claim that a relevant consent has lapsed, or did not commence, as a consequence of a failure to satisfy a condition (No. 6), which required the applicant for consent to submit, and the Council to approve, "at any time prior to 1994", "fully detailed landscaping plans for [an] arboreal screen, prior to any extractive operations".

1. The draft APOC assert that, pursuant to the statute relevant at the time, that consent lapsed on or about 31 August 1982. The present owners/respondents took over only in early 1994 (Mr Gilson's affidavit, 13 May).

1. The Council solicitor (Mr Ball's affidavit, 8 May) says that it was only on 30 April 2014 that it became clear to him, on a review of copious Council documents, which were available to him from late 2013, including a Statement of Environmental Effects ("SEE") dated May 1994, that the new claim was needed.

1. That SEE noted that Council had earlier raised the issue of the (missing) landscaping plan, but asserted that the proposed gravel screen would not alter the quarry use, or any environmental concerns.

1. The land owner was said to be re-considering the use, and the SEE said that the landscaping plan "will be an integral part of future staging", but not a "priority" issue (Ball affidavit, pp20-1).

1. Mr Ball also annexed a letter from Council to a former owner of the quarry, dated 11 August 1987, pointing out that condition 6 did not appear to have been complied with. That letter suggests also that some landscaping proposals among the original development application ("DA") documents (upon which the respondents today rely) do not satisfy the condition, in terms.

1. On 14 January 2013, the Council first alleged that the quarry operation was illegal, but the letter from Council's solicitors dated 8 May 2014, long after the summons was first amended, was the first notice to the respondents that Council alleged the quarry operation had never legally commenced, or that the arboreal screen had never been approved.

1. The original consent was granted 35 years ago, and the respondents' ownership began 20 years ago.

1. The respondents say that adverse publicity flowing from Council's investigation of the their operation, commencing mid 2011, has seriously damaged it in the market place. The expected sales in financial year 2013/14, like 2011/12 and 2012/13, will be only about one-third of those in financial year 2010/11, putting their investment and operation at serious risk. (Details are contained in Gilson's affidavit).

1. The respondents also complain of Council's delay in the matter so far, to be exacerbated if it succeeds on this motion to amend, as they cannot be ready to proceed on 2 June if the amendment is granted leave (Details are contained in Mr Mallik's affidavit of 15 May).

1. The Court has been taken to the principles governing amendment and case management, in the Civil Procedure Act2005, and in Aon Risk Services Australia Limited v Australian National University ("Aon") [2009] HCA 27; (2009) 239 CLR 175.

1. Mr Larkin also relies upon the circumstances and decisions in cases like Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243 and one of the Iron Gates cases, Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132. Mr Howard relied in detail on Aon, and I have closely considered pars [90]-[112].

1. I accept that the new claims are raised "at the door" of the hearing, and totally change the terrain of the case. The resultant vacation of the hearing is to be regretted.

1. The applicants' failures in framing and preparing the matter have been admitted and explained, but not adequately excused. The argument of finding a "needle in a haystack", which was not searched before the last amendment, is, to the Court, totally inadequate.

1. In consequence, I acknowledge that the respondents will suffer more prejudice than can be compensated by a costs order, which the applicant concedes ought be made.

1. Comprehensive new directions will be required, and much of the preparatory work will need to be re-done.

1. I have concluded that the interests of justice, after a difficult balancing task, and issues of general public interest support the grant of leave to amend, and I will hear the parties on appropriate orders and directions, consequential on this decision.

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Decision last updated: 19 May 2014