Verde Terra Pty Ltd v Environment Protection Authority (No 3)

[2018] NSWLEC 161

Land and Environment Court

New South Wales

Medium Neutral Citation:	Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161
Hearing dates:	10 and 11 October 2018
Date of orders:	18 October 2018
Decision date:	18 October 2018
Jurisdiction:	Class 1
Before:	Moore J
Decision:	(1) Pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005, Central Coast Council (the Council) is joined as the Second Respondent to these proceedings; (2)   The Council is to file and serve its Statement of Facts and Contentions in Reply in the terms of Exhibit 1 on its Notice of Motion for joinder by the close of business on Friday 19 October 2018; (3)   The exhibits on the joinder motion, other than Exhibits A and 1, are returned; (4)   Costs are reserved; (5)   If the Council proposes to seek to rely on any Statement of Facts and Contentions in Reply, other than in the terms of that which is to be filed pursuant to (2), any Notice of Motion seeking to rely on any Amended Statement of Facts and Contentions in Reply is to be made returnable before the Registrar on Thursday 22 November 2018 and is to be filed and served by 16 November 2018; and (6)   The matter is set down before the Registrar for further directions on Thursday 22 November 2018.
Catchwords:	APPLICATION FOR JOINDER - application by council to be joined to Class 1 appeal seeking variation to the Environment Protection Licence for a landfill located in the council’s local government area - application opposed by operator of the landfill - application not opposed by the Environment Protection Authority - if joinder rejected, alternative basis for participation sought pursuant to a “Double Bay Marina” order - tests for joinder pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (UCPR) - Draft Statement of Facts and Contentions in Reply tendered by applicant for joinder - two contentions proposed to be relied upon if joinder granted - proposed contentions considered against tests UCPR r 6.24(1) - multiple bases established as warranting joinder - joinder ordered
Legislation Cited:	Civil Procedure Act 2005, s 56(1) Environmental Planning and Assessment Act 1979 Federal Court Rules 2011 Land and Environment Court Act 1979, s 38(2) Local Government (Council Amalgamations) Proclamation 2016 Local Government Act 1993 Protection of the Environment Operations Act 1979, ss 50 and 287(1), 287(3) Uniform Civil Procedure Rules 2005, r 6.24(1)
Cases Cited:	Chriss v Williams (1988) NSWCA 22 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 News Limited v Australian Rugby Football League Limited (1996) FCR 410 Penang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2001] NSWLEC 154 Verde Terra Pty Ltd v Environment Protection Authority (No 1) [2018] NSWLEC 159 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Verde Terra Pty Ltd (Applicant) Environment Protection Authority (Respondent) Central Coast Council (Applicant for Joinder)
Representation:	Counsel: Mr T Howard SC/Ms C Novak, barrister (Applicant for Joinder) Mr P Larkin SC/Mr G Tsang, barrister (Applicant in the proceedings)   Solicitors: Central Coast Council (Applicant for Joinder) Ashurst Australia (Applicant in the proceedings)
File Number(s):	246174 of 2018
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The local government position

The joinder application

The relevant statutory framework

The existing pleadings

The Council's pleadings

The evidence

Background

Introduction

The Company’s development consent

The 2014 consent orders

The EPA's Landfill Guidelines

The relationship between the Council's pleadings and those of the EPA

The pleadings concerning leachate issues

Ms Hughes’ evidence

Mr Ball’s evidence

The Company’s submissions on joinder

Delay

Are the Council’s contentions genuine?

The Council’s EP&A Act contention

The Council's water management contention

The Council's joinder is for all purposes

Joinder under the Land and Environment Court Act

Orders

Annexure A

Judgment

Introduction

1. Verde Terra Pty Ltd (the Company) conducts a landfill/waste management facility at Mangrove Mountain in the Central Coast hinterland. The Company conducts its operation pursuant to an Environment Protection Licence (EPL), EPL 11395, granted pursuant to the Protection of the Environment Operations Act 1997 (the POEO Act). The authorising regulatory authority for the purposes of granting or variation of the Company’s EPL is the Environment Protection Authority (the EPA).

2. The Company made an application to the EPA on 21 September 2015 to vary the EPL. The variation proposed, amongst other things:

• a 10-year extension of the operation of the landfill/waste management facility;

• the expansion of the Company's operations into a portion of the Company’s site not currently part of the Company's landfilling location;

• the disposal of a further 1.3 million tonnes of waste at the site; and

• the placing of more than 1.3 million tonnes of excavated material which would be brought to the site, as well as the additional waste for the disposal of which approval was sought.

3. The EPA did not make a decision as to whether or not to grant the Company’s September 2015 application to vary its EPL. As a consequence of the effluxion of time, pursuant to s 287(3) of the POEO Act, the EPA was deemed to have refused the September 2015 application to vary the Company’s EPL. This deemed refusal triggered, pursuant to s 287(1) of the POEO Act, the right of the Company to commence Class 1 proceedings in this Court to appeal against the EPA's deemed refusal of the variation application.

4. The Company filed an appeal on 31 May 2018 purporting to appeal against the deemed refusal of the September 2015 EPL variation application.

5. On 3 October 2018, the EPA filed a Notice of Motion in those Class 1 proceedings seeking that they be struck out. The basis upon which the EPA made this application was that the combination of the aggregate time permitted by s 287 of the POEO Act for the bringing of an appeal against the deemed refusal of the September 2015 application had expired in late November 2015 and that there was no power for the Court to extend that time.

6. I heard the EPA's application and, on 11 October 2018, struck out the purported appeal against the deemed refusal of the 2015 application (see Verde Terra Pty Ltd v Environment Protection Authority (No 1) [2018] NSWLEC 159) (Verde Terra (No 1)).

7. However, I assume, in anticipation of this potential outcome concerning the 2015 EPL variation application, the Company lodged a further application with the EPA to vary the Company's EPL. This variation application, seeking changes in the EPL in identical terms to those sought in the September 2015 application, was made to the EPA on 2 August 2018. The EPA considered this second application and determined it by refusal on 9 August 2018. This refusal triggered the availability to the Company of the right to appeal to the Court pursuant to s 287(1) of the POEO Act against that actual refusal.

8. A Class 1 appeal was filed on behalf of the Company against the actual refusal by the EPA of the August 2018 variation application. This appeal was filed on 10 August 2018. There is no doubt that this appeal was filed within the permitted statutory time period and will, therefore, be heard and determined by the Court after necessary pre-trial evidentiary and other procedural requirements are satisfied.

The local government position

9. The Company’s landfill/waste management facility at Mangrove Mountain is located in what is now the Central Coast local government area.

10. Until 12 May 2016, the Company’s site had been within the local government area then known as Gosford City. By the Local Government (Council Amalgamations)Proclamation 2016 (the Proclamation), Central Coast Council (the Council) was created to administer all relevant statutory functions that had previously been within the separate responsibilities of Gosford City Council and Wyong Shire Council. For the purposes of the Local Government Act 1993, the resultant combined local government area is known as the Central Coast local government area.

11. One effect of the Proclamation is that the Council is now bound by the terms of consent orders entered into between the Company and the former Gosford City Council arising out of Class 4 civil enforcement proceedings commenced by the former Gosford City Council against the Company. Those orders were made on 29 August 2014.

The joinder application

12. On 5 September 2018, the Council filed a Notice of Motion in these Class 1 proceedings concerning the actual refusal by the EPA of the Company’s August 2018 variation application. The Council's Notice of Motion sought that it be joined as the Second Respondent to the Class 1 appeal, or, in the alternative, that it be granted the more limited rights of participation in the proceedings under an order of the type known as a Double Bay Marina Order (following Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313).

13. The Company opposes the Council being permitted to participate in the Class 1 appeal on either basis but says, in the alternative, that if I was minded to permit any participation by the Council, such participation should be on a confined basis, limited to a single issue (the water management issue) pursuant to a Double Bay Marina Order.

The relevant statutory framework

14. The power to order that the Council be joined to the proceedings as the Second Respondent is found in r 6.24(1) of the Uniform Civil Procedure Rules 2005 (the UCPR). This provision is in the following terms:

6.24   Court may join party if joinder proper or necessary

(1)   If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

15. The power to grant the alternative, more limited participation if the Council is not joined pursuant to the above provision of the UCPR is to be found in s 38(2) of the Land and Environment Court Act 1979 (the Court Act). This provision is in the following terms:

38   Procedure

(1)   …

(2)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

16. For completeness, it is appropriate to note that the Council says that its participation in the proceedings (whether on its preferred basis or on its fall‑back basis) would be in furtherance of the objective set out in s 56(1) of the Civil Procedure Act 2005 (the Civil Procedure Act) of ensuring the just, quick and cheap resolution of all the issues in dispute between the parties.

The existing pleadings

17. On 15 August 2018, the Company filed its Statement of Facts and Contentions in this appeal. The EPA subsequently filed its Statement of Facts and Contentions in Reply (the SOFAC in Reply) on 11 September 2018.

18. Noting the existence of these documents, particularly the SOFAC in Reply, is sufficient at this point. It will be necessary, however, later in this decision to consider, in a little more detail, the terms of relevant portions of these documents.

The Council's pleadings

19. When the Council moved on its Motion for Joinder, Mr Howard SC, appearing for the Council, did not seek to rely on any draft Statement of Facts and Contentions in Reply that the Council proposed to file if this application for joinder, pursuant to r 6.24(1) of the UCPR, was successful.

20. When I observed to him that it was customary that a party seeking to be joined in circumstances such as these would provide a Draft Statement of Facts and Contentions in Reply to enable the opposing party (in this case, the Company as Applicant in the proceedings) to understand that which was proposed to be pressed against it as contentions to deny the Company the relief sought, Mr Howard sought time, overnight, to prepare a Draft Statement of Facts and Contentions in Reply for the Council. Such a Draft Statement of Facts and Contentions in Reply, on behalf of the Council, was tendered at the resumption of the proceedings on 11 October 2018. Without objection, it became Exhibit 1 on the joinder Notice of Motion.

21. Exhibit 1 contained a number of details where the Council pleaded additional material concerning the facts asserted by the Company in the Company's Statement of Facts and Contentions (the Company’s document forming part of Exhibit A at Tab 4).

22. It is not necessary, for the purposes of these proceedings, to do more than note that there were additional factual matters pleaded by the Council which appear to be at variance to, or in addition to, factual matters pleaded by the EPA in its SOFAC in Reply. For the present purposes, it does not seem to me that it is necessary for me to undertake any intensive analysis of what might be the factual differences between the pleadings of the EPA and the proposed pleadings of the Council.

23. However, it is appropriate to set out, in their entirety, the two contentions proposed to be pleaded by the Council and the supporting particulars in each instance, set out in Exhibit 1. These elements of the Council's proposed pleadings are in the following terms:

LACK OF POWER TO GRANT THE APPLICATION

13. The Court does not have the power to grant the licence variation because the licence variation seeks authorisation of activities that comprise the carrying out of “controlled development” within the meaning of s 50 of the PEO Act and development consent has not been granted for the controlled development.

Particulars

(a)   The 1998 Consent is not a consent to the controlled development. The Council refers to paragraph 1(a) above.

(b)   The licence variation application seeks authority for activities which would constitute an independent use of the land for the purposes of a major landfilling operation, unrelated to development for the purpose of a golf course.

(c)   The licence variation application seeks authority for activities which would constitute the separate use of the land for the purpose of waste processing, which was not approved under the 1998 Consent.

(d)   The licence variation application seeks authority for activities which would constitute the separate use of the land for the purpose of a waste transfer facility, which was not approved under the 1998 Consent.

(e)   Each of the land uses referred to in sub-paragraphs (b) - (d) above requires development consent.

14.   The 2014 Consent Orders do not obviate the need for Verde Terra to obtain development consent for the activities which are the subject of the licence variation application.

UNACCEPTABLE RISK TO WATER SUPPLY

15.   The development approved by the 1998 Consent involved landfilling only by non-putrescible solid waste and to a quantum of between 80,000 and 240,000 tonnes, whereas the activities sought to be authorised by the proposed variation to the EPL would allow more than 1,000,000 tonnes of waste to be emplaced on the subject land including putrescible waste and over a much larger area that the area approved for landfilling under the 1998 Consent.

16.   By the reason of the proposed variation involving the disposal on the subject land of a far greater quantity of waste than approved under the 1998 Consent over a far larger area of land and including putrescible waste, the volume and characteristics of leachate generated on the subject site if the proposed variation to the EPL is granted poses a significantly greater risk to the water quality in the catchment than the risk posed by the development approved by the 1998 Consent and that greater risk has not been the subject of proper assessment.

17. As the leachate management system proposed to be authorised by the EPL variation does not conform with the requirements for leachate management under the 2016 Landfill guidelines, the proposed variation to the EPL, if granted creates an unacceptable risk that the duties and functions of the Council as a water supply authority under the Water Management Act 2000 would be compromised.

Particulars

(a)   In so far as concerns the inadequacies of the proposed leachate liner referable to the 2016 Landfill Guidelines, the Council adopts the contentions of the EPA in its Statement of Facts and Contentions in reply at paragraph 21 (b).

(b)   The inadequacies in the leachate liner and its failure to conform with the standards mandated under the 2016 Landfill Guidelines create an unacceptable risk of leachate migrating from the facility to the downstream catchment and into Ourimbah Creek.

(c)   If the water quality in Ourimbah Creek is adversely affected by migration of leachate or polluted surface water from the subject facility, there is an unacceptable risk that water quality in the Mardi Dam will be adversely affected such as to prevent the Council as the water supply authority from supplying potable water from that source.

(d)   If water quality in the Mardi Dam is compromised, restoration or treatment of the water to restore it to proper drinking water quality is likely to be complex, difficult and expensive for the Council as water supply authority. The Council would not be able to extract water from the Wyong River Weir, make transfers to the Mangrove Creek Dam or operate the Mardi Water Treatment Plant until the issue was resolved, this would compromise security of water supply for the entire Central Coast.

(e)   If undetected toxins entered Mardi Dam and are pumped to Mangrove Creek Dam before they are identified, the majority of the Central Coast raw water supply system could also be placed at risk, this includes the operation of Somersby Water Treatment Plant. The Central Coast raw water system is interconnected; Mangrove Creek Dam is supplied from Wyong River via Mardi Dam and Mangrove Creek Dam supplies the Somersby Water Treatment Plant.

18.   The proposed waste facility is:

a.   on land overlying a groundwater aquifer containing drinking water quality groundwater that is vulnerable to pollution; and

b.   on land within 40 metres of a permanent or intermittent watercourse.

Accordingly, the operation of the proposed landfill facility in this location is contrary to the 2016 Landfill Guidelines which expressly provides that the locations described in paragraphs “a” and “b” above are environmentally sensitive areas to be avoided as locations for landfills under Table 1 of the 1996 NSW Department of Urban Affairs and Planning Landfilling EIS Guideline and which should be excluded from consideration at the outset as an appropriate locality for a landfill.

19. The matters referred to in the preceding contentions must be the subject of proper assessment of this proposal under the provisions of Environmental Planning and Assessment Act upon the lodgement of an appropriate development application.

The evidence

24. In addition to the various procedural documents relating to this joinder application and forming part of the Court Book (Exhibit A), the additional evidence in the proceedings was given by:

• Mr Martin Ball, Acting General Counsel for the Council; and

• Ms Rebecca Hughes, a solicitor employed by Ashurst, the Company's legal representatives.

25. Each of these witnesses provided an affidavit and each of them was required for cross-examination. The nature of the evidence given in their affidavits, and orally, is dealt with in more detail later in this decision.

Background

Introduction

26. There are a number of matters which should be noted as providing contextual elements for these joinder proceedings. They relate to both historical interrelationship between the Company and the former Gosford City Council and matters relating to the regulatory framework for landfills in New South Wales.

The Company’s development consent

27. In 1998, the Company was granted development consent by the former Gosford City Council for landfilling activities at its site at Mangrove Mountain. The landfilling activities were to be undertaken as part of a remodelling of a golf course. The material permitted to be brought to the landfill for this purpose was non-putrescible waste. A copy of the 1998 development consent, and its attached conditions imposed pursuant to the Environmental Planning and Assessment Act 1979 (the EP&A Act), is not in evidence in these joinder proceedings.

28. However, it is to be accepted that the Company’s landfilling activities were to be subject to a Landfill Environmental Management Plan (LEMP) and a Leachate Management Plan (LMP).

The 2014 consent orders

29. In 2012, the former Gosford City Council commenced Class 4 proceedings against the Company concerning the Company’s landfill activities at Mangrove Mountain. In 2014, those proceedings were settled, with that settlement being effected by the earlier noted consent orders of the Court made in August 2014. Those consent orders referred to a 2013 version of the LEMP and a 2013 version of the LMP. The 2013 versions of these plans were ones which had evolved from the documents arising out of the 1998 development consent. To the extent that there may be controversy, in the EPL variation proceedings, concerning this evolution of these two plans, any controversy is not relevant, as I understand it, on this question of joinder.

30. The 2014 consent orders are in evidence (Exhibit A, Tab 7) on this joinder application. Those consent orders required refinement to the 2013 LEMP and to the 2013 LMP. After those refinements were effected, these two documents became the 2014 LEMP and the 2014 LMP. These 2014 plans currently embody the landfill environmental management and leachate management requirements for any landfilling which might be carried out by the Company at Mangrove Mountain.

The EPA's Landfill Guidelines

31. In 1996, the EPA published guidelines for the operation of landfill sites (the 1996 Guidelines). The 1996 Guidelines apply to the Company’s 1998 development consent granted by the former Gosford City Council.

32. In 2016, the EPA published a revised, second edition of its Landfill Guidelines (the 2016 Guidelines).

33. The Company's application to vary its EPL is one which relies on the continuing applicability of the 1996 Guidelines and what the Company says is the scope of the 1998 development consent (as modified) as the basis for authorising the variation of its EPL to permit the further operation of its Mangrove Mountain landfill within the scope earlier outlined.

34. The 2016 Guidelines, as I understand it, are more restrictive than the 1996 version. However, nothing turns on this on this question of joinder.

The relationship between the Council's pleadings and those of the EPA

35. As can be seen from that which is set out above, in particular 13(a) of the Council’s Draft Statement of Facts and Contentions in Reply, the Council refers to (1)(a) pleaded in its Draft Statement of Facts and Contentions in Reply. This pleading is part of the Council's response to (12) of the Company’s Statement of Facts and Contentions. The Council's pleading is in the following terms:

Landfilling was permitted by the 1998 consent only insofar as such landfilling was carried out for the purpose of the remodelling of the golf course approved by the 1998 consent and the 1998 consent did not otherwise permit any landfilling to be carried out on the land;

36. In (17)(a) of the Council's Draft Statement of Facts and Contentions in Reply, it can be seen that that:

The Council adopts the contentions of the EPA in its Statement of Facts and Contentions in Reply at (21)(b).

37. For the purpose of completeness, it is to be observed that there is no (21)(b) to the EPA's SOFAC in Reply in these proceedings. It is likely that the reference to (21)(b) should, in fact, be a reference to (25)(b), a pleading in the following terms:

Both the Environmental Guidelines: Solid Waste Landfills,-2nd ed (NSWEPA, 2016) (2016 guidelines) and the Environmental Guidelines: Solid Waste Landfills (NSWEPA, 1996) (the 1996 guidelines) require a leachate drainage layer of drainage material at least 300 mm thick to be placed over the liner.

38. Neither of these derivative elements of the Council's proposed contentions, in my assessment, requires specific analysis in the context of this joinder application.

The pleadings concerning leachate issues

39. The Company’s Statement of Facts and Contentions notes, in (27)(a), that the EPA had appointed Mr Alan Dyer of SLR Consulting Australia Pty Ltd to conduct an independent review and assessment of the Mangrove Mountain landfill facility development. It is to be noted that a copy of the report prepared by Mr Dyer, entitled “Technical, Environmental and Operational Review Mangrove Mountain Landfill” and dated 5 May 2017 (the SLR Consulting report), was exhibited as MB2 to the affidavit of Mr Ball earlier noted.

40. It is not necessary for the purposes of my consideration of this joinder application that I address the detail of Mr Dyer's report. It is sufficient to note that, at (28) of the Company’s Statement of Facts and Contentions, the Company quotes from the EPA's website’s description of Mr Dyer's report, with the quoted element including the following:

This independent assessment found no evidence the landfill is affecting ground or surface water quality, which confirms the assessment of water quality tests in surrounding creeks that the EPA and the NSW Office of Water and Heritage have done previously, along with groundwater monitoring undertaken by Verde Terra’s consultants.

41. It is also sufficient, for present purposes, to note that the EPA, in its SOFAC in Reply, does not dispute the accuracy of the above extracted element of the Company’s pleadings.

42. Whilst the EPA’s pleadings say that further contextual quotation from its website was appropriate (as set out in (28) of the EPA's SOFAC in Reply), the additional material quoted from the EPA's website does not resile from the element I have quoted from the Company’s Statement of Facts and Contentions concerning water quality matters.

Ms Hughes’ evidence

43. As earlier noted, Ms Hughes provided an affidavit which was read on this joinder motion. The relevant elements of her affidavit are contained in (4) to (6) of her affidavit. These are in the following terms:

4   On 11 October 2018, I had a conversation with Mr Duncan Lowe, a principal of Consulting Earth Scientists Pty Ltd. Mr Lowe is an engineering geologist who specialises in the design and management of landfills and leachate systems. Mr Lowe told me of the following things, which I believe to be true.

5   Under the EPL, as currently in force, leachate is not permitted to be discharged from the site in any circumstances, other than by tanker into a facility authorised to receive it.

6   The application for the variation of the EPL does not propose to alter this position.

44. That which is set out in (5) and (6) of her affidavit is consistent with the position adopted by the EPA.

45. Although, as earlier noted, Ms Hughes was required for cross-examination, nothing emerged from her cross-examination by Mr Howard which, in my assessment, requires further consideration on this joinder application.

Mr Ball’s evidence

46. As earlier noted, Mr Ball provided affidavit evidence and was required for cross-examination. The relevant portion of his affidavit ((3) to (13)) is relevant to the second of the Council’s Draft Statement of Facts and Contentions in Reply set out in Exhibit 1. These paragraphs of Mr Ball’s affidavit were in the following terms:

3. I am aware that the Central Coast Water Corporation is not the water supply authority for the local government area of the Central Coast Council (or any other area). As specified in Chapter 6, Part 2 of the Water Management Act 2000 (WM Act), the former Gosford City Council and Wyong Shire Council are the nominated water supply authorities for the respective former local government areas they previously administered.

4. I am informed and believe that upon the abolition of those former councils and the creation of the Central Coast Council, the Local Government (Council Amalgamations) Proclamation 2016 these references in the WM Act are taken to be references to the Central Coast Council, such that, under the WM Act, the Council is the water supply authority for the local government area of the Central Coast.

5. The Central Coast Water Corporation Act 2006, included provisions under Schedule 7 which, had they come into force, would have had the effect of amending the WM Act to make the Central Coast Water Corporation the water supply authority for the local government areas of Gosford City and Wyong Shire, in lieu of the former Gosford City Council and Wyong Shire Council. However, the provisions of Schedule 7 which would have had that effect have not come into force at any time.

6.   I am informed and believe that, in its capacity as a water supply authority under the WM Act, the Council exercises functions, inter alia, under the WM Act, including supplying potable water to more than 300,000 residents and to thousands of commercial and industrial and manufacturing premises. In addition, I am informed and believe that there is an arrangement between the Council and Hunter Water Corporation for the mutual supply of water in times of shortage.

7.   Annexed to this affidavit and marked ‘A’ is a copy of a schematic diagram showing the major infrastructure comprising the water supply operations of the Council.

8.   I am informed and believe that the subject application by Verde Terra to vary its EPL proposes leachate management in accordance with a leachate management plan prepared by Consulting Earth Scientists (CES 110703-VDT-060) dated 4 February 2014 (amended 10 October 2017) (2014 LMP). Exhibited before me at the time of swearing this affidavit and marked MB-1 is a copy of the 2014 LMP.

9.   I am informed and believe that the leachate management system proposed under the 2014 LMP is not in accordance with the EPA’s 2016 Environmental Guidelines: Solid Waste Landfills (2016 Landfill Guidelines).

10.   I am informed and believe that the SLR peer review recommended that the leachate management plan for the proposed landfill should comply with the 2016 Landfill Guidelines and I understand that other changes were also recommended to be made to the 2014 LMP. Exhibited before me at the time of swearing this affidavit and marked MB-2 is a copy of the SLR peer review.

11. I refer to the functions of the Council as a water supply authority including under s 292 of the WM Act and to the objects of that Act as set out in s 3 of the Act.

12.   I am instructed that the Council is concerned that the quality of water of Ourimbah Creek which is a source of water supply to the Mardi Dam (a drinking water reservoir managed by the Council as water supply authority) could be adversely affected by the migration of leachate from the subject proposed landfill site over or beyond the proposed operational life of the landfill facility.

13.   I am further instructed that the Council’s Water and Sewer Directorate staff have a detailed technical knowledge and understanding of the water supply functions and operations of the Council and how those functions and operations might be at risk were leachate from the proposed landfill to enter Ourimbah Creek.

47. Although Mr Ball was cross-examined by Mr Larkin SC, appearing for the Company, nothing arises out of his oral evidence, in my assessment, that requires particular consideration with respect to this joinder application.

48. The schematic diagram referred to by Mr Ball in (7) of his affidavit is reproduced as Annexure A to this judgment.

49. It is unnecessary to analyse the terms of the 2014 LMP that was exhibited to Mr Ball’s affidavit. The history of the derivation of the 2014 LMP has earlier been described.

The Company’s submissions on joinder

50. Written submissions were made on behalf of the Company concerning the Council's application for joinder pursuant to r 6.24(1) of the UCPR.

51. The Company relies on the commentary of the Full Court of the Federal Court in News Limited v Australian Rugby Football LeagueLimited (1996) FCR 410 (News v ARL). The role that this decision should play in my assessment is dealt with in my subsequent consideration of the Company's application. It is sufficient, at the present point, to note that I am not persuaded that this decision stands as an impediment to the Council's joinder (in fact, quite to the contrary).

52. It is also the Company's position that the Council’s direct rights are not affected by the present proceedings (relying on John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 (at [131]-[132])). For the reasons I later explain, these proceedings, and other similar ones upon which the Council has relied and the Company says are not applicable because there are no direct Council rights or liabilities which are potentially engaged in these proceedings, do not assist the Company.

53. The Council relied, amongst other cases, on the Court of Appeals’ decision in Chriss v Williams (1988) NSWCA 22, citing Hope JA, speaking on behalf of the Court, where his Honour said:

Pt 8, r 8 is not to be applied in the Land and Environment Court necessarily in the same way as it would be applied in this Court. It is to be applied with such adaptations as may be necessary. In this regard, it is relevant to appreciate that in the Land and Environment Court matters of public law are commonly involved and not matters of private law, as are commonly involved in the Supreme Court.

54. The Company's submission, with respect to this decision was, at (33) of its written submissions, that:

These comments confirm that the Court's task is to apply the express words of the rule (here UCPR 6.24(1)) to the statutory context and circumstances of the case. Obviously, it remains necessary to apply the words of the rule in all cases.

55. For the reasons I later set out, I am satisfied that the role of the Council, as a public authority, sets it apart from other parties who might be seeking to be joined on the basis of a proprietary or commercial interest in the outcomes of any proceedings (as was the case in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2001] NSWLEC 154, as observed by McEwen AJ at [12]).

56. I am satisfied that reliance on cases involving commercial interests, as has been the position advanced on behalf of the Company, does not adequately have regard, for the reasons later explained, to the protective responsibilities for the public interest in the maintenance of the planning system under the EP&A Act that fall upon the Council.

Delay

57. On a number of occasions during the course of his oral submissions, Mr Larkin said, as a rhetorical flourish, “Bring it on!”, in reference to the fact that the Council had, more than a year prior to this Notice of Motion, suggested to the Company that it might commence Class 4 civil enforcement proceedings seeking to injunct the Company with respect to the Company's past landfilling activities at Mangrove Mountain. In this context, it is to be noted that the 2014 consent orders between the former Gosford City Council and the Company were ones which had arisen out of Class 4 proceedings initiated by that former Council.

58. In addition to his rhetorical invitation, Mr Larkin also substantively submitted, as I understood him, the fact that the Council had not made good on commencing Class 4 proceedings against the Company with respect to its Mangrove Mountain site, should be regarded as delay to weigh against the Council in my assessment of whether or not it should be joined to the proceedings.

59. I am not satisfied that this is appropriate.

60. Whatever might be the Council's basis for commencing such proceedings if it was to do so, it is not clear that the matters which would be potentially engaged by such proceedings would necessarily coincide, in their entirety, with those matters which the Council has set out as its two contentions in Exhibit 1.

61. Even if I was to accept that this was the position and that all relevant matters potentially able to be litigated in Class 4 proceedings by the Council if it was to commence such proceedings are also to be litigated in these proceedings, it seems to me that it would be antithetical to the overriding purpose set out in s 56(1) of the Civil Procedure Act for the just, quick and cheap resolution of the issues genuinely in dispute between the parties to encourage separate, subsequent litigation rather than folding in all relevant matters for determination in these proceedings.

62. I do not consider that the asserted delay in commencing Class 4 proceedings provides any basis to reject the Council's application for joinder in these proceedings.

Are the Council’s contentions genuine?

63. I should also observe that the Company tendered an e-mail chain from August 2017 between the Company’s then legal representative and Mr Brian Glendenning, the Council's General Counsel. This e-mail chain became Exhibit C.

64. The relevant portion of the e-mail chain to which I was taken was a paragraph from Mr Glendenning's e-mail of 4 August 2015 where he wrote:

Apologies for the delay - I was waiting on final instructions from my client concerning the technical aspects of some of the related amended plans, and I understand that my clients technical experts and my client’s technical experts have been working through a number of technical issues, which are now resolved. One of those concerned the proposed hours of operation, which your clients have agreed to reduce back to the hours of the current development consent. It would now seem there is alignment between the positions of your clients, the EPA and Council on those technical matters.

65. I understood that the inference which I was invited to draw from this was that the technical matters now proposed to be relied upon by the Council for the purposes of the second of the Council's proposed contentions (relating to water management issues as earlier set out) was not genuine as those technical issues had been resolved.

66. I am unable to draw the inference that the Company proposes. First, I have reached this conclusion because there is nothing beyond that which is contained in this e-mail exchange which would enable me to understand what were the technical matters upon which agreement was said to have been reached and whether those technical matters encompassed all of the matters now proposed to be advanced by the Council in its water management contention.

67. Absent specificity on this point in these joinder proceedings, it is more appropriate that I leave to the trial decision-maker the question of whether or not there has been some agreement on technical matters in the past where the Council is no longer proposing to adhere to that agreement (and whatever might be appropriate to be the consequences if that was the circumstance which arose), rather than dealing with the matter as an impediment to joinder where there is no precise evidence as to what was contemplated by Mr Glendenning's comment in the e-mail.

68. Upon joinder, the Council will be required to make good, in a proper evidentiary fashion, the matters that it sets out in its water management contention and that evidence will be able to be tested during the course of the substantive Class 1 proceedings. I am not satisfied that there is any impediment raised to joinder as a consequence of that e-mail.

69. Second, on 8 August 2017, the Council's Group Leader, Environment & Planning wrote to the EPA's Manager, Strategic Waste Programs in the following substantive terms concerning the 2017 LEMP and LMP:

Council has considered the material supplied by the site operator, and negotiated a number of amendments to bring the proposed future operations in line with the current development consent, including the hours and days of operation. It is now a matter for the operator to secure a development consent for the proposed use, and it remains the Council's preference and position that the operator seek to achieve that either by a ‘fresh’ development application or a s. 96 application to modify the existing development consent, under the Environmental Planning and Assessment Act.

70. It is to be observed that the 2017 plans to which reference is made in the Council’s letter are not those sought to be relied upon by the Company in the application which is the subject of these proceedings.

71. This letter constitutes the most recent specific position adopted by the Council of which I have evidence (before these proceedings were commenced) concerning the necessity for a further approval under the EP&A Act. However, I also note that the EPA pleads a later, consistent position said to be adopted by the Council - see [80] below.

72. The Council's position (that the Company's proposed future landfilling operations require approval in an appropriate fashion pursuant to the EP&A Act, but that some technical issues have been resolved) is not inconsistent with the earlier e-mail element from Mr Glendenning quoted above. It is, equally, not inconsistent with the Council's first contention pleaded in its Draft Statement of Facts and Contentions in Reply.

The Council’s EP&A Act contention

73. In News v ARL at 523 and following, the Full Court of the Federal Court considered the provisions in the Federal Court Rules equivalent to r 6.24(1) of the UCPR. The decision quoted, at 524 (C) to (E), the reasons of Lord Diplock in Penang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52. Lord Diplock had dealt with the nature of the test which should be addressed in considering whether joinder should be ordered. This was set out as follows:

A better way of expressing the test is: will his rights against all liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?

74. It is to be observed, that the question of joinder being dealt with in these proceedings was sought for the purposes of challenging, on appeal, orders that had been made by the primary judge. Relevantly, as to the way the matter should be approached, the Full Court said, at 525 (B to D):

In our opinion, the question should be decided according to the test proposed by Lord Diplock. The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317, at 322, per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.

Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties.

75. It is also to be observed that, in these proceedings, the joinder that is sought is one arising prior to the trial of the substantive matters proposed to be agitated in the Company's appeal against the EPA's August 2018 refusal of the Company's application to vary its EPL.

76. In the above extract, the requirement that regard is had to the joinder-seeking party’s rights against or liability to a party to the existing proceedings is one which, in my view, is limited because it arises, in that context, out of the nature of the private commercial litigation involving the parties to those proceedings.

77. In these proceedings, for the purposes of this joinder application, the first limb of the test in r 6.24(1) of the UCPR should also be viewed in the context of the fact that the Council is a public authority, invested with planning responsibilities within its local government area pursuant to the EP&A Act.

78. Although promulgated in an entirely different context, the fourth of the guidelines set out by Kirby P, in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339, is relevant by analogy. The President drew a distinction between the role of a public authority in seeking to protect the integrity of the legislative planning scheme established by the EP&A Act and what might be some enforcement of a private right.

79. In these proceedings, the Council is not seeking to protect any private right but is seeking to be joined so as to be heard concerning the responsibilities vested in it pursuant to the statutory planning system. In that fashion, the role that would be undertaken by the Council, if joined, would be distinctly different from that which is currently the responsibility of the EPA. Whilst the EPA, too, is a public authority, it is a public authority with differing responsibilities (ones arising in these proceedings, relevantly, under the POEO Act and not under the EP&A Act).

80. The EPA has pleaded, at (29)(m) of its SOFAC in Reply:

On 12 April 2018, Central Coast Council wrote to the Respondent advising that its position was that the Respondent:

Does not have the legal power to approve the variation of EPL 11395 that is being sought under the application lodged in 2015, as the activities the subject of EPL 11395 as varied and as proposed to be further varied by that application does not have the benefit of development consent granted under the Environmental Planning and Assessment Act 1979.

81. Whilst, in that pleading in response to a pleading from the Company, the EPA is dealing with the 2015 application to vary the EPL (struck out for the reasons given in Verde Terra (No 1)), the EPA also pleaded, in its contentions in its SOFAC in Reply addressing its 2018 refusal of the Company’s 2018 application to vary the EPL, matters concerning the necessity for separate consent pursuant to the EP&A Act as compared to merit matters pleaded as said to arise under the POEO Act.

82. It is clear that, although not arising from rights or liabilities of the Council, the matter which the Council seeks to raise in the first of its contentions arises from its statutory responsibilities under the EP&A Act.

83. In this context, I am satisfied that the test in the first limb of r 6.24(1) is satisfied and that the Council ought to be joined as a party to the proceedings.

84. In addition, because the question of whether, in the exercise of its powers under the EP&A Act, it is necessary for the Council to have approved the proposed additional landfilling activities sought by the Company’s variation to its EPL (whether by application to modify the Company’s 1998 development consent or by an application for a fresh development consent for this additional activity being irrelevant for this purpose) is unresolved, I am also satisfied that, although put into issue by the EPA in the context of the EPA's obligations pursuant to s 50 of the POEO Act, nonetheless, the responsibilities of the Council, under the EP&A Act, give rise to the potential necessity to satisfy a different head of power under a separate statutory regime.

85. On this basis, I am satisfied that, with respect to the Council’s first contention in its Draft Statement of Facts and Contentions in Reply, joinder of the Council to address that issue is also necessary for the determination of that matter in dispute in the proceedings.

The Council's water management contention

86. I have earlier set out the relevant paragraph from the Company's pleadings concerning the attitude taken by the EPA, as acknowledged on the EPA's website, to the lack of potential for there being a downstream impact on water quality from leachate from the Company’s landfill site. I have earlier set out Ms Hughes’ evidence concerning the relevant leachate containment condition applicable in the 1998 consent.

87. Although there is the presumption that a party having the benefit of a development consent will abide by the terms of the conditions attaching to it, it remains open for this position to be challenged in proceedings such as this if a party, as the Council will become, proposes to advance the proposition that a condition is incapable of compliance.

88. I have also set out Mr Ball's evidence concerning the Council's responsibilities as a water supply authority under the Water Management Act 2000 (the Water Management Act).

89. The Council's Draft Statement of Facts and Contentions in Reply sets out, in (15) to (18), matters relating to water quality issues. The Council then pleads, at (19), that those matters require consideration under the EP&A Act (thus linking to the first of the Council’s proposed contentions if joined).

90. Given that I have already explained why the Council should be joined for the purposes of matters relating to its responsibilities as the relevant planning authority under the EP&A Act, it is unnecessary to consider further this aspect of the Council’s proposed contentions.

91. It is appropriate, however, to consider whether the water matters proposed to be raised by the Council, if joined, satisfy the second limb of the tests set out in r 6.24(1) of the UCPR. In this context, again, it is appropriate to have regard to the responsibilities of the Council, pursuant to the Water Management Act, in considering whether or not there are matters appropriately in dispute in the proceedings that require joinder of the Council.

92. First, it is to be observed that, amongst the objects set out in s 3 of the Water Management Act, is s 3(b) - a provision in the following terms:

To protect, enhance and restore water resources, their associated ecosystems, ecological processes and biological diversity and their water quality.

93. It is in the context of this objective that the Council points to its role as a water supply authority and, relevantly, its function set out in s 292(1)(c), a provision in the following terms:

292   Functions of water supply authority.

(1)    A water supply authority has the following functions:

…

(c)    to do anything for the purpose of enabling the objects of this act to be attained.

94. As is clear from the earlier short extract from material on the EPA's website concerning the SLR Consulting report, there is no evidence, at the present time, that the EPA will place the question of potential impacts on downstream water quality in issue in the proceedings concerning the proposed variation of the Company’s EPL.

95. The Council's second contention, earlier set out, evidences the express intention of seeking to address the potential impact on water quality downstream of the Company’s landfill and the issue of whether or not that would impact on the function with which the Council is invested pursuant to the combination of the relevant object of the Water Management Act and the function of the Council as a water supply authority under that Act as earlier set out.

96. Given that there is no evidence that the EPA would be a contradictor on that point and that the Council seeks to plead matters that are, in that regard, apparently distinctly different from the position taken by the EPA, I am satisfied that the test posed by the second limb of r 6.24 of the UCPR is satisfied by this contention and provides a separate and distinct basis upon which the Council should be joined as a respondent to the proceedings.

The Council's joinder is for all purposes

97. As I indicated to Mr Larkin during the course of dealing with this Notice of Motion, I considered that joinder of the Council as a respondent to the proceedings, if I was to reach that conclusion, meant that such joinder was to be for all purposes and was not to be confined solely to those matters set out in the Council’s Draft Statement of Facts and Contentions in Reply.

98. However, in the circumstances where the Company should have reasonable notice of the case that is now to be pleaded against it as a consequence of the Council's joinder, I am satisfied that it is appropriate to provide for two procedural steps involving the Council in the orders to arise as a result of this determination.

99. First, I am satisfied that I should direct the Council to file and serve, promptly, a copy of its Draft Statement of Facts and Contentions in Reply as its actual Statement of Facts and Contentions in Reply following its joinder.

100. In addition, I am satisfied that it is appropriate to make a limited provision for the Council to seek leave, by further Notice of Motion, if it proposes to seek to rely on any Amended Statement of Facts and Contentions in Reply. Should the Council propose to do so, I am satisfied that it should be required to do so in a timely fashion. I have therefore included in the orders arising from this joinder motion provision for a time within which that ought to occur.

Joinder under the Land and Environment Court Act

101. Given that I have concluded that the Council should be joined as the Second Respondent pursuant to r 6.24(1) of the UCPR, it is unnecessary to consider whether joinder on a more limited basis might have been appropriate, utilising the power so to order pursuant to s 38(2) of the Court Act.

Orders

102. The orders of the Court are:

1. Pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005, Central Coast Council (the Council) is joined as the Second Respondent to these proceedings;

2. The Council is to file and serve its Statement of Facts and Contentions in Reply in the terms of Exhibit 1 on its Notice of Motion for joinder by the close of business on Friday 19 October 2018;

3. The exhibits on the joinder motion, other than Exhibits A and 1, are returned;

4. Costs are reserved;

5. If the Council proposes to seek to rely on any Statement of Facts and Contentions in Reply, other than in the terms of that which is to be filed pursuant to (2), any Notice of Motion seeking to rely on any Amended Statement of Facts and Contentions in Reply is to be made returnable before the Registrar on Thursday 22 November 2018 and is to be filed and served by 16 November 2018; and

6. The matter is set down before the Registrar for further directions on Thursday 22 November 2018.

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Annexure A

Decision last updated: 18 October 2018