Vanmeld Pty Limited v Fairfield City Council

[1998] NSWLEC 136

Land and Environment Court

of New South Wales

CITATION:	Vanmeld Pty Limited v. Fairfield City Council [1998] NSWLEC 136
PARTIES:	APPLICANT Vanmeld Pty Ltd RESPONDENT Fairfield City Council
FILE NUMBER(S):	10081; 40077 of 1997
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Land & Environment Court Act 1979 Fairfield Local Environmental Plan 1994
CASES CITED:
DATES OF HEARING:	13/02/98, 03/04/98
DATE OF JUDGMENT:	05/29/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr E Strasser, Barrister RESPONDENT Mr J Webster, Barrister

JUDGMENT:

Applicant Mr E Strasser, Barrister

Respondent Mr J Webster, Barrister

Solicitors Applicant Mr R Butler of Jennifer E Darin

Respondent Ms L McCusker of Deacons Graham & James

Number of pages 17

Summary of orders

* Both proceedings adjourned to Registrar's callover list on 5.6.1998

Contents

The Relationship between these two matters and other proceedings 1

My Earlier judgment 6

The current submissions 8

The Court's Power to pose and answer separate questions 12

Conclusion and Orders 16

IN THE LAND AND Matter Nos: 10081 and 40077

ENVIRONMENT COURT of 1997

OF NEW SOUTH WALES Coram: Sheahan J

29 May 1998

VANMELD PTY LIMITED

Applicant

v

FAIRFIELD CITY COUNCIL

Respondent

JUDGMENT

This applicant company ("Vanmeld") and the respondent Council ("Council") have been involved in litigation for many years both in this Court and the Supreme Court of New South Wales. (See Exhibit A sections 1-6).

This judgment deals further with two matters currently pending in this Court - Matter No.10081 of 1997 and Matter No.40077 of 1997.

The Relationship between these two matters and other proceedings

The Class 1 proceedings (Matter No.10081 of 1997) were commenced on 11 February 1997 and comprise an appeal by Vanmeld and Clandon Court Limited against the deemed refusal by the Council of a development application to place fill upon, and excavate parts of, the company's property known as "Magic Kingdom", on the so-called "Lansvale peninsular".

The subject land is zoned 6(d)(Recreation Tourism Zone) under Fairfield Local Environmental Plan 1994 ("LEP") and clause 13(3) of that LEP states, inter alia, that "a person must not place fill in a floodway in Zone 6(d)(the Recreation Tourism zone) in Lansvale".

This subclause is at the heart of the matters involved in these proceedings.

The Class 1 proceedings are currently before the Court for mention only, while a decision is reached as to what should become of the Class 4 proceedings. The parties have agreed - and it is clearly desirable - that the Class 4 proceedings should be concluded first, but it must be noted that in the Class 1 proceedings a "Notice of Motion" by the two Applicants, dated 27 February 1997, remains to be disposed of, in which, inter alia, the following "declarations" have been sought:

"1. A declaration that the land the subject of these proceedings does not constitute a floodway within the meaning of the Fairfield Local Environmental Plan 1994.

2. Alternatively a declaration as to such part of the land the subject of these proceedings as does constitute a floodway within the meaning of the Fairfield Local Environmental Plan 1994."

The Class 4 proceedings currently before the Court (Matter No.40077 of 1997) were commenced on 16 April 1997 pursuant to an agreement reached between Vanmeld and Council. Both these parties, and others, were, at the time, involved in proceedings in the Construction List within the Common Law Division of the Supreme Court of New South Wales (Matter No.55080 of 1994), in which Council and other plaintiffs agreed with Vanmeld and other defendants on Short Minutes of Order dated 14 April 1997, clause 3 of which provided relevantly as follows:

"3. The Court notes the agreement between the parties as follows:

(a) In the event of either agreement between the First Plaintiff and the Defendants or a declaration or order of the Land and Environment Court whereby it is determined that not less than two thirds in area of so much of the land of the First Defendant being Lots 1-8, Section G, DP2151(`the subject land') which is identified on the plan a copy whereof is annexed hereto and marked `A' (`the plan') as `Area to be Filled' is not within a `floodway' as that term is defined in Fairfield Local Environmental Plan 1994 (`the LEP'), then the Defendants and each of them shall upon the request in writing of the First Plaintiff or its solicitor immediately consent to the following orders being made in these proceedings:

(i) an order that the Consent Orders and the Deed which are respectively Annexures `A' and `B' to the affidavit of Susan Anne Dixon sworn 1 December 1994 and filed herein be executed by the Defendants and each of them and that the said Deed be specifically performed and carried into execution by the Defendants;

(ii) an order that the Cross-Claim be dismissed;

(iii) an order that the Defendants pay the Plaintiffs costs of the proceedings including the Cross-Claim.

(b) ...

(c) Within seven days of the date hereof the First Defendant shall file in the Land and Environment Court a Class 4 proceeding seeking a declaration that not less than two thirds in area of so much of the subject land which is identified on the plan as `Area to be Filled' is not within a `floodway' as that term is defined in the LEP.

(d) In the event that the Land and Environment Court declares that more than two thirds in area of so much of the subject land which is identified on the plan as `Area to be Filled' is within a `floodway' as that term is defined in the LEP and the Court of Appeal upholds an appeal in proceedings No.040420 of 1996 in that Court and declares that clause 13(3) of the LEP is void or otherwise invalid, then the Defendants and each of them shall upon the request in writing of the First Plaintiff or its solicitors immediately consent to the orders referred to in sub-paragraph (a)(i), (ii) and (iii) above.

(e) In the event that the Land and Environment Court makes the declaration referred to in the preceding sub-paragraph, the First Defendant shall immediately make an application for expedition of the Court of Appeal proceedings referred to in that sub-paragraph which said application the First Plaintiff shall support.

(f) In the event that the First Plaintiff or the First Defendant appeals against any decision of the Land and Environment Court in the proceedings referred to in sub-paragraph (c) hereof, the First Defendant shall, immediately following the filing of any such appeal, make an application to the Court of Appeal for expedition of that appeal which said application the Court shall support.

(g) In the event that orders are made in the proceedings in terms of those contemplated in sub-paragraph (a)(i), (ii) and (iii) above, the First Defendant shall immediately consent to the appeal to the Court of Appeal No.040420 of 1996 being dismissed with costs.

(h) ...".

Attached to those Short Minutes of Order (referred to hereafter as the "Supreme Court Short Minutes") is a plan of Magic Kingdom indicating the "area to be filled" and the "area to be excavated".

Prior to the commencement of the Class 1 and Class 4 proceedings early in 1997, these parties had been before this Court on at least three other occasions. In Class 2 proceedings (20252 of 1991, Cripps J, Unreported, 31 October 1991) the Court dealt with a caravan park apparently adjacent to Magic Kingdom and refused an application in which Vanmeld appealed to the Court against the refusal of the Council of an application for a licence under Ordinance 71.

Those proceedings were expedited, because Council had taken proceedings in the Equity Division of the Supreme Court to restrain Vanmeld "from using the land unlawfully".

In Class 4 of the Court's jurisdiction, Bignold J dealt with two matters, Matter No.40010 of 1995 and Matter No.40032 of 1995. Relevantly in Matter No.40032 of 1995, Bignold J (Unreported, 28 June 1996) dismissed an application in which Vanmeld sought a declaration that clause 13(3) of the LEP was invalid.

Those proceedings had also laid dormant for some time because of negotiations between Vanmeld and the Council to settle concurrent Supreme Court proceedings. Bignold J's judgment has been appealed to the Court of Appeal, and that appeal is the one referred to in clause 3(d) of the Supreme Court Short Minutes. (namely Appeal No.40420 of 1996).

In the amended Points of Claim when that matter was before Bignold J, the applicant alleged that the Council had acted "in bad faith in procuring the gazettal of the LEP". Bignold J interpreted that widely stated claim as intended to be confined to the Council's decision to include clause 13(3) in the LEP. At the hearing the applicant contended that clause 13(3) was invalid for reasons not only of bad faith, but also "breach of natural justice or procedural fairness" and/or "procedural and substantive ultra vires". In his judgment, Bignold J refers on several occasions to "the concurrent Supreme Court proceedings".

Against this complex litigatious background, the current Class 4 proceedings came before me for hearing on 21, 22 and 24 July 1997 and I delivered Reasons for Judgment on 19 December 1997.

Although invited to do so from time to time during the submissions in the recent further hearing of these Class 4 proceedings, the Court will not at this stage embark upon a detailed consideration of whether clause 13(3) is a development standard.

That is a matter which may well, and quite probably will, be litigated in the Class 1 proceedings, either at their hearing, or by way of the determination of a preliminary point of law, but the question has not yet been raised as an issue in those proceedings.My earlier judgment

The overall complexity of the current Class 4 proceedings can be gleaned from a perusal of my Reasons for Judgment of 19 December 1997, which obviously cannot and should not be repeated in full here.

In these Class 4 proceedings, Vanmeld seek relief in the form of two alternative declarations, namely:

"1. A Declaration that none of the land of the Applicant being Lots 108 (sic) Section G DP2151 in Hollywood Drive, Lansvale is within a floodway as that term is defined in Fairfield Local Environmental Plan 1994.

2. In the alternative to 1, a Declaration that if any portion or portions of the land is, or are, within a floodway (as so defined) identifying such portion or portions." (emphasis added).

The formulation of the issues in this way must be compared with that in the Supreme Court Short Minutes, which refers to "not less than two thirds" (see 3(a) and 3(c) quoted above), or "more than two thirds" (3(d)), and with the class 1 "notice of motion" which refers to "such part of the land".

In my earlier Reasons for Judgment I construed the word "floodway", as it appears in clause 13(3), according to the ordinary meaning of the term and allowed a focus on the volume of water involved rather than the number of flow paths on the land.

In considering the evidence against the background of that construction of the relevant word, I came to the conclusion that the Court would not be able to make the first declaration sought, namely that none of the land was within a floodway.

On the evidence, I was satisfied "that at least some of the MK land is within a floodway, at least in some flooding situations", but that the Court could not "identify with any precision, and then declare, which `...portion or portions of the land is, or are, within a floodway ...'."

It should be self evident from this conclusion that there was no evidence before me to indicate, even in broad terms, that the areas within a floodway amounted to two thirds of the relevant land.

Counsel for the Council had submitted during that hearing that in such circumstances the Court should dismiss the Class 4 application, but I decided not to do so.

In Class 4 proceedings it is desirable for parties to set out in precise terms the declarations or other relief sought, as the Court will always exercise its discretion to grant relief where it has some practical utility. As a general rule, a declaration in terms different from that sought should not be made, even to resolve the dispute before the Court, as there may be some evidence or argument, not raised in the proceedings, which weighs against the making of such a declaration.

I accordingly stood the matter over to enable the parties to consider "what, if any, further evidence should be adduced, and/or the form of any final order(s) the Parties believe the Court should make to conclude this litigation".

The Class 4 proceedings were then listed for mention before me on 13 February 1998, on what proved to be a misunderstanding within the Court that the parties had agreed upon Orders that should be made following those Reasons for Judgment.

On that occasion Counsel for the Council again expressed the view that the appropriate order would be for the Court to dismiss the Class 4 application, presumably on the grounds of my finding that the evidence was insufficient to found a declaration in the precise terms the applicant had sought in its second prayer for relief.Counsel for Vanmeld presented to the Court some draft orders his client would prefer the Court to make.

The competing submissions were stood over for further hearing and came back before me on Friday 3 April 1998.

The current submissions

The respondent Council filed written submissions on 19 March 1998. The applicant prepared and served written submissions on 25 March 1998 and the respondent's submissions in reply were received by the Court on 2 April 1998.

The applicant wishes the Court to make the following orders:

"1. Orders that pursuant to Part 31 rule 2(a) of the rules incorporated by Part 6 rule 1(1) of the rules, the question of whether:-

(a) the expression `the main flow path' in the definition of `floodway' in the LEP in the dictionary of the LEP, means a single path of water;

(b) the definition of the word `floodway' as it appears in cl 13(3), and, as it is defined in the LEP, is exhaustive and clear and extrinsic evidence, including the NSW Flood Plain Development Manual, is not relevant to its construction;

(c) clauses 11 and 12 affect the interpretation of floodway, as used in cl 13(3); and

(d) it is the volume, or bulk, of the water, rather than the surface velocity that is important in assessing what constitutes a floodway;

be set aside and determined separately from, and before, any other questions in the proceedings.

2. Answers the question set aside pursuant in Order 1:-

(a) No.

(b) No.

(c) Yes.

(d) Yes."

The Short Minutes the applicant handed up ("the LEC Short Minutes") go on to seek orders that the matter be stood over for a period of some weeks, with leave to either party to restore on 7 days notice.

The respondent's submissions assert that the only declaration which assists the parties is one in the terms nominated in the Supreme Court Short Minutes, namely, "that not less than two thirds in area of so much of the subject land which is identified on the plan as `Area to be Filled' is not within a `floodway' as that term is defined in the LEP".

The applicant points out, somewhat in contrast to the way it framed its Class 4 application, that it is not necessary for the Court to make a declaration specifying exactly which definable portions of the Magic Kingdom land is within a floodway.

It would, therefore, appear that what the parties require is a declaration that either two thirds or more of the subject land is not, or, alternatively, that two thirds or more is, within a floodway, as defined.

Whereas the LEC Short Minutes prepared on behalf of the applicant separate out four questions which it contends were answered in my Reasons of 19 December 1997, the respondent's submissions identify in that judgment 17 findings which could now be reformulated in question-and-answer format.

The respondent submits that a party must be bound by his or her conduct. (Wentworth v Attorney General of NSW (1984) 154 CLR 518 at 526). The applicant elected to seek a declaration in terms which required the identification of that part of the subject land which is floodbound, and the respondent contends the applicant must therefore be bound by that conduct. The Court cannot be asked to vary the orders that were sought, now that the proceedings have been litigated upon the premise that the issues to be determined were those defined in the Class 4 application. It is also not appropriate that the proceedings be placed "on hold" while the applicant seeks to test the Reasons for Judgment in the Court of Appeal.

The applicant further contends, and in the alternative, that as these Class 4 proceedings are predicated on the settlement or otherwise of the Supreme Court proceedings, the appropriate consideration for this Court now is to have regard to its need to complete all proceedings finally in this Court.

Throughout this matter the Court has been mindful of its obligations under s 22 of the Land & Environment Court Act 1979 ("LECA"), which provides in the following terms:

"22. The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided."

The applicant's submissions assert that the determination of the floodway question is one peculiarly within the jurisdiction of this Court, and one upon which the parties were agreed that this Court should make the determination, unless they could agree between themselves.

The respondent submits that as the Court has already found a floodway on the land in two of the three flooding scenarios, there must be a floodway on that land for the purposes of clause 13(3). Accordingly, the Court should refuse to make the first declaration sought by the applicant and should declare that not less than two thirds in area of so much of the subject land is within a floodway. The applicant should also be ordered to pay the respondent's costs.

The applicant contends that the findings expressed in my Reasons would satisfy the criteria adopted by the parties in the agreement noted in the Supreme Court, but would not discharge the matter remaining to be adjudicated in those Supreme Court proceedings.

As cl 13(3), to the extent that it applies to the land, may constitute an absolute prohibition to development, the applicant is anxious that the Class 4 proceedings fully dispose of the issues between the parties. If the submission that cl 13(3) is actually a development standard is correct, the respondent's failure to waive its provisions is a judiciable matter for this Court.

The applicant submits that in view of the Court's acceptance of its submission that it is volume, rather than velocity of flood water, that ought to be considered, further evidence is essential. Some of the expert evidence considered by the Court was prepared applying the wrong methodology.

The submissions go on to consider the possible role of the Court of Appeal in determining this litigation. Meanwhile, this Court's decision that some of the land is not within a floodway will, when finalised by a delineation of the actual location of the floodway, mean that some, although not all of the land, is capable of being developed.

In the respondent's submissions in reply, the question is raised as to whether the Court has the power to separate questions out after it has heard all the offered evidence.

The respondent contends that the tendering of further evidence will not be productive of any conclusion to the Supreme Court proceedings unless the applicant proceeds further with this matter on the basis of an amendment to the terms of the second declaration it sought.

(No application has as yet been made for leave to amend the Class 4 application, and Counsel for Vanmeld foreshadowed none when he dealt with the possibility during argument on 3 April 1998).

The submissions in reply conclude "the only proper course is to offer the applicant and the respondent the opportunity to call further evidence in respect of the second declaration being sought and if the applicant wants to seek leave to appeal and forego those rights, judgment should be made dismissing the whole application".

The Court's Power to pose and answer separate questions

Part 31 of the Supreme Court Rules, which applies to this Court, contemplates an order being made that a particular question should be decided separately from others.

Rule 2 says:

"The Court may make orders for -

(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

(b) the statement of a case and the question for decision."

For an illustration of the operation of these rules and procedures see Attrill & Anor v Richmond River Shire Council (Hodgson J (1993) 30 NSWLR 122 & Court of Appeal (1995) 38 NSWLR 545). ("Attrill").

Attrill demonstrates that the procedure under which specific questions are separated out, dealt with, and even then the subject of appeal, works best where there is consent.

Here the respondent is not consenting to the procedure suggested by the applicant. The respondent contends that my judgment should not be "divided up into convenient bits in order to offer the applicant an opportunity ... to lodge an application for leave to appeal".

The respondent further contends that there are no useful decisions that could be made by the Court of Appeal to affect the determination of the second question raised in the Class 4 application.

American Home Assurance Co v Ampol Refineries Limited (1987) 10 NSWLR 13 ("American Home Assurance") is authority for the proposition that a Judge has power to make an order for the separate determination of a question, even after having made a decision on that separate question and having given reasons for it.

Clarke J had purported to order that a question which had arisen previously in a trial before him should be tried separately from any other question in the proceedings. By the same orders he purported to provide an answer to the previously stated question. Ampol challenged the Judge's action. The Court of Appeal dismissed the challenge and some weeks later published a joint judgment providing its reasons.

The headnote of the report of the case goes on to say, however, that normally the order for separate determination should be made in advance of reaching the decision on the relevant question so that the question can be specified with clarity and the parties can have full opportunity to address evidence and argument to it. Where both parties had acquiesced in the separate determination of a question by the Trial Judge at first instance, (as Clarke J had done in American Home Assurance), the Judge's subsequent order that the question be separately determined was properly made.

Like the situation now before the Court in this matter, the proceedings before Clarke J in American Home Assurance were just one step in a complex network of litigation.The Court of Appeal summarises the position thus:

"Put shortly, that question can be stated as whether, following the giving of reasons upon a question which de facto has been separated in the course of a trial and answered by those reasons, a judge can ex post specify, by order, that certain questions be decided separately, proceeding in the same order to provide the answers thereto. ... It was common ground that Ampol had proceeded before his Honour, acquiescing in the de facto separation of the issues which his Honour proceeded to isolate and to deal with in his decision of 4 March 1987. This acquiescence is plain from the course which the proceedings took before Clarke J. It is reinforced by the course his Honour adopted ..." (pp16-17).

Ampol argued that its alleged acquiescence should not prevent it from canvassing the orders Clarke J had made. Ampol suggested that what was involved was no mere technicality. As the Court of Appeal said :

"A party might acquiesce in the convenient informal separation of an issue for preliminary decision whilst resisting the formal separation of an issue, as s 103 of the Act and Pt 31 of the rules contemplates. Such a formal separation might result in a party being forced to face a series of appeals, resulting in delays in the conduct of the principal litigation and costs which many parties could not afford to bear". (p17).

The Court found that there was no doubt that the parties before Clarke J had agreed to, and co-operated in, the isolation of the relevant insurance issue, whether because of the limited time available to the trial Judge, or because an adverse determination of the question would affect the whole future conduct of the trial. At 17 the Court said:

"Whatever the reasons, it is clear that the course adopted by Clarke J had the entire agreement of the parties. Ampol was the moving party. Far from resisting the separation of the `liability' question, it appears to have invited that course. It was a course which had certain advantages for Ampol in the presentation of the trial and in the exclusion from it of the brokers ... Therefore, to the extent that it is appropriate in considering the application for leave to take into account the conduct of Ampol before Clarke J, its failure to make plain any objection which it had to the separation of a question for decision, separately from any other question or issue, must tell against Ampol in the application which it now raises in objection to the course which Clarke J later took. By that step, his Honour was simply endeavouring to specify the question which, by acquiescence of the parties, had de facto been tried separately before him".

The Court makes clear that normal practice would be to make an order in advance of the reaching of the decision, but it did not find that this was so simply because of the terms and structure of the relevant rules. The Court said at 18:

"... where such a question has now been earlier specified, a Court would hesitate later to specify those questions, if any possible prejudice could arise from the terms of the question or lateness of the order that a decision be made separately from any other question. However, the provision in Pt 31, r 2(a), by which the decision separated may be determined before, at or after any trial or further trial suggests the high degree of flexibility in the procedures contemplated by the rule. There is nothing in the terms of the rule which requires that the orders for separate decision be made only in advance of reasons for judgment indicating what those answers will be. Nor do we consider that there is anything in Pt 31, r 2(b), which limits the power of the Court to make the orders contemplated in r 2(a) only before a decision is delivered in which reasons are given for a conclusion on the question subsequently separated".

The Court went on to consider whether any other rules dictated that a "separation" order should be made only prior to the hearing, and found none. The Court continued at 19:

"In support of what Clarke J did in the present case must be listed first the fact that his Honour was simply formalising the course which, informally, had been acquiesced in by all parties. It would not have been right for his Honour to act as he did if, in any way, it disadvantaged Ampol or if Ampol could have suggested any prejudice suffered by it. But there was no disadvantage and no prejudice was identified save for the suggested loss of the opportunity to object to the formal order under Pt 31, r 2, if the order had been made earlier or to seek the removal of the proceedings into this Court under Pt 12, r 2. Neither of these is a consideration which has any weight in the present case.

In addition, there are reasons of principle which favour the course which Clarke J took. They include the desirability of flexibility in the conduct of complex litigation ... It must never be forgotten that the rules are the servants and not the masters of the administration of justice in the Court. Clarke J took the course which was sensible in the light of the proceedings as they had been conducted before him. No reason being shown as to why his Honour's orders were made without power, or in a wrongful exercise of his discretion, they are now before us. They plainly ground the jurisdiction of this Court under s 103 of the Act, should the Court be so minded, to grant leave to appeal."

In the case before me, I am satisfied that I have the power to do as the applicant now suggests.

However, both the constraints acknowledged by the Court of Appeal - namely lack of common ground in respect of the appropriate phrasing of the question, and the assertion of prejudice if the action is taken - are present in the current situation, in the respondent's submissions.

Accordingly, in the absence of consent, and in the presence of an assertion of prejudice, I decline to make the orders sought by the applicant.

Conclusion and Orders

Mindful of my obligations under s 22 of the LECA to endeavour to conclude this litigation, I have determined that I must seek to deal with the issues before this Court in a way which best serves the role envisaged for these proceedings by the Supreme Court Short Minutes, namely declaring whether or not two thirds of the relevant land is in a floodway.

I, therefore, can see no utility in doing what the respondent asks, namely dismissing the Class 4 application in its entirety.

I have already decided I should dismiss prayer 1 of the application, but I now grant leave to the parties to adduce further evidence in respect of prayer 2.

For this purpose, the Class 4 proceedings are adjourned to the Registrar's callover list on Friday 5 June 1998 for the purpose of setting a date for the hearing of further evidence, and establishing an appropriate timetable for the filing and service of such expert and other evidence as the parties may wish to adduce, so the Court may arrive at final orders in respect of prayer 2 and the other prayers for relief in the Class 4 application, namely, "Such further or other orders as the Court may deem fit", and for costs.

The Class 1 proceedings are formally adjourned to the same callover list, and should continue to be associated with the Class 4 proceedings.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 16 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

Associate:

Dated: 29 May 1998