Rocla Pty Limited v Minister for Planning

[2006] NSWLEC 279

Land and Environment Court

of New South Wales

CITATION:

Rocla Pty Limited v Minister for Planning & Another [2006] NSWLEC 279

PARTIES:

APPLICANT
Rocla Pty Limited

FIRST RESPONDENT
Minister for Planning

SECOND RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10447 of 2005

CORAM:

Talbot J

KEY ISSUES:

Practice and Procedure :- application for determination of preliminary question as separate issue.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 76A(7)
Land and Environment Court Act 1979 s 39(6)
Sydney Regional Environmental Plan No. 17 – Kurnell Peninsula (1989) cl 25

DATES OF HEARING:

01/05/2006, 03/05/2006 (written submissions), 05/05/2006 (written submissions)

 
DATE OF JUDGMENT: 

05/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M G Craig QC
SOLICITORS
Blake Dawson Waldron

FIRST RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Department of Planning

SECOND RESPONDENT
Mr P W Larkin (Barrister)
SOLICITORS
Woolf & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

26 May 2006

10447 of 2005 Rocla Pty Limited v Minister for Planning & Another

JUDGMENT

1 Talbot J: The first respondent is the Minister for Planning who seeks an order that the Court determine separate issues which arise as preliminary questions of law; the resolution of which is said to be essential at this stage as an answer against the interests of Rocla Pty Limited (“the applicant”) would result in a final determination of the proceedings.

2 The proceedings are an appeal against the refusal of a development application for the production of sand products from the subject site with a progressive back fill of the void to create a final landform to allow the release of land suitable for light industrial purposes. The development application was determined by the Minister on 24 April 2005. The subject land is situated on Captain Cook Drive comprising approximately 26 hectares on the Kurnell peninsula. The methods of recovery include dredging and dry extraction.

3 The principle issue raised by the Minister as a preliminary question is whether the effect of cl 25 of Sydney Regional Environmental Plan No. 17 – Kurnell Peninsula (1989) (“SREP 17”) precludes the Court from granting consent. Clause 25 provides as follows:-

25 Department of Water Resources requirements

The Council shall not consent to the carrying out of development where:

(a) groundwater is abstracted for water supply purposes, or

(b) groundwater is recirculated for industrial purposes and returned to the aquifer, or

(c) groundwater or surface water is discharged as waste water into bores, unlined pits, channels or excavations,
unless arrangements for the proper utilisation and protection of this natural resource have been made that are satisfactory to the Department of Water Resources.

4 Pursuant to the now repealed s 76A(7) of the Environmental Planning and Assessment Act 1979 (“the EPA Act’) on 3 September 1999 the subject development became State Significant Development and accordingly the Minister became the consent authority. There are a number of issues raised arising out of the preliminary question which may be summarised as follows:-

(1) Whether the reference to “the Council” in cl 25 of SREP 17 includes the Minister in the circumstances.

(2) Whether the proposed development falls into one or more of the categories described in (a), (b), (c) of cl 25 of SREP 17.

(3) Whether in the event that cl 25 applies and there are no existing arrangements within the meaning of cl 25 that are satisfactory to the Department of Natural Resources (formerly Department of Water Resources) the provisions of s 39(6) of the Land and Environment Court Act 1979 (“the Court Act”) apply so that the Court, on appeal, may grant consent to the development application notwithstanding that arrangements for the proper utilisation and protection of the natural water have not been made.

5 Section 39(6) of the Court Act provides as follows:-

(6)Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body:

(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

6 It is self evident that it will be necessary for the Court to hear from a number of experts before it can decide whether the development falls within the categories identified above in cl 25. Moreover if s 39(6) applies that same evidence will be relevant to the issue of whether the relevant satisfactory arrangements have been made. It is foreseeable that the expert evidence would extend beyond the field of hydrology and involve the assessment of impact on flora and fauna; being issues also relevant to the determination of the merits of the case.

7 The Minister’s preferred position is that the entirety of the legal questions be dealt with as a preliminary point. The Minister acknowledges that determination of the broad legal question involves the determination of some facts but that the factual questions are likely to be conclusions of fact or inferences drawn from primary facts which are not likely to be in dispute. It is further contended that it is important to resolve the issue of whether the reference in cl 25 to “the Council” should be read as a reference to the Minister (or the Court on appeal) because it is determinative of the application of SREP 17 to the proposal.

8 If cl 25 applies it may be necessary to join the Department of Natural Resources or at least invite it to make submissions so that the Court is properly informed before it exercises any discretion that it may have by virtue of s 39(6). The Minister contends that the following directions should be made to facilitate determination of the questions raised as preliminary issues:-

(a) Orders and directions made heretofore for preparation of expert and other evidence be suspended pending determination at a preliminary hearing;

(b) Answers be provided to interrogatories to be directed to the applicant regarding the method of operation of the proposal insofar as it relates to the matters referred to in (a), (b), (c) of cl 25;

(c) The parties file and serve any evidence on the preliminary questions prior to the first hearing;

(d) The parties be directed to prepare, file and serve written submissions in respect of the preliminary issue.

9 I have not been persuaded at this stage at least that there is one simple question that will be determinative of the proceedings. Nor am I satisfied that the issues are clearly severable in the sense that the questions raised by the Minister may require findings of fact on matters likely to be contentious and which are relevant to the determination of the ultimate merit issues. I agree with the applicant that the issues raised by cl 25 are factually complex and necessitate the hearing of a major part of the evidence, including at least comprehensive evidence on the use of and effect on groundwater. A determination of whether the provisions of cl 25 (a), (b), or (c) apply demands the consideration of expert evidence of a highly technical nature. The application of the provisions cannot be resolved by a mere construction of the words.

10 The case is already in an advanced stage of preparation in respects that go beyond the cl 25 issue and although there is no direct evidence in this respect I am entitled to infer that considerable expense has already been incurred so that no saving will occur in that respect. The Court will not be in a position to address the question of whether the provisions of s 39(6) apply until there is a determination that cl 25 is relevant. Accordingly, the precursor to the approach to the exercise of the Court’s discretion in that respect involves a consideration of a considerable and significant part of the evidence that will be necessary for a determination of all issues raised in the proceedings.

11 It is not practicable in my view to facilitate the hearing and determination of the so-called preliminary issues on a consideration of the documentary evidence alone. It will be necessary for there to be extensive testing of expert opinion in respect of a number of matters by oral evidence of experts already retained and whose evidence is already in an advanced state of preparation. The evidence may involve the credibility of witnesses material to the remaining issues in the proceedings which could prejudice the future conduct if the preliminary questions are resolved contrary to the Minister’s contention.

12 Having regard to the whole of the circumstances, the consideration of the matters referred to above and starting from the principle that generally speaking all issues should be tried at the same time, I am reluctant to make orders for separate determination of any question and in particular the issues identified by the Minister. The application for separate determination is refused. I confirm that the orders and directions made in regard to the preparation of evidence for the hearing of the appeal that are extant are to be complied with.

13 The question of costs in relation to the application for determination of preliminary questions is reserved.