Vincent Land Pty Ltd v Hyder Consulting Pty Limited
[2012] NSWLEC 261
•29 November 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Vincent Land Pty Ltd v Hyder Consulting Pty Limited [2012] NSWLEC 261 Hearing dates: 15 November 2012 Decision date: 29 November 2012 Jurisdiction: Class 4 Before: Pain J Decision: 1. The First Respondent's amended notice of motion filed in Court on 15 November 2012 is dismissed.
2. Costs of the hearing of the First Respondent's amended notice of motion filed in Court on 15 November 2012 are reserved.
Catchwords: PROCEDURE - application for strike out or summary dismissal of proceedings by applicant for modification of development consent acting as an agent for the owner of land - no cause of action disclosed in points of claim - applicant for modification application a proper party to proceedings - no order for strike out or dismissal made Legislation Cited: Civil Procedure Act 2005 s 56
Environmental Planning and Assessment Act 1979 s 96, s 97AA, s 124
Environmental Planning and Assessment Regulation 2000 cl 115, cl 283
Uniform Civil Procedure Rules 2005 r 6.24, r 13.4, r 14.28Cases Cited: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Eastmark Holdings Pty Ltd v Kabraji [2012] NSWSC 802
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Mutual Life & Citizens Assurance Co Ltd v Evatt [1971] AC 793; (1970) 122 CLR 628
Paul Earnest Simmons v Protective Commissioner of NSW (also known as NSW Trustee and Guardian) [2012] NSWSC 455Texts Cited: Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 Category: Interlocutory applications Parties: Vincent Land Pty Ltd (Applicant)
Hyder Consulting Pty Limited (First Respondent)
Maitland City Council (Second Respondent)Representation: Mr T Howard (Applicant)
Mr C Withers (First Respondent)
Mr M Staunton (Second Respondent)
Mallik Rees Lawyers (Applicant)
Kennedys (First Respondent)
Lindsay Taylor Lawyers (Second Respondent)
File Number(s): 40198 of 2012
Judgment
Hyder Consulting Pty Limited (Hyder), the First Respondent, filed an amended notice of motion in Court seeking orders that the part of these proceedings commenced against it be dismissed under r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (the UCPR) or be struck out pursuant to r 14.28, and costs.
Rule 13.4(1)(b) states:
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
...
(b) no reasonable cause of action is disclosed,
...
the court may order that the proceedings be dismissed generally or in relation to that claim.
Rule 14.28(1)(a) states:
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading,
Maitland City Council (the Council) granted itself development consent for a waste facility known as the Mount Vincent Waste Facility on 28 June 1991. Hyder, as agent for the Council, lodged a modification application for that consent in accordance with cl 115(h) of the Environmental Planning and Assessment Regulation 2000 (the Regulation), that is, with the Council's consent as landowner. The Council approved the modification application on 22 November 2011 (modification consent).
Section 96(2)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Act) provides:
(2) Other modifications
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all),
The Class 4 summons filed by Vincent Land Pty Ltd (Vincent) on 27 February 2012 seeks numerous declarations and orders including a declaration that the modification consent is void and of no effect (prayer 1). An injunctive order restraining both Respondents from acting in reliance on the consent is also sought (prayer 4).
The Points of Claim (POC) filed on 22 June 2012 state at par 2, 7 - 17:
2. The First Respondent [Hyder] is an Australian company entitled to sue and be sued under its corporate name and style.
...
7. By way of Notice of Determination dated 28 June 1991, with respect to DA No. 91/117, the Second Respondent [the Council] granted to itself development consent for a waste disposal depot on land described as "Part Lot 220, Part Lot 201 DP 520191, Part Lot 202 DP 523762 at Mt Vincent Road, East Maitland", subject to conditions specified in the said Notice of Determination (the "Original Consent").
...
10. The height limit of RL 54.5m and the maximum permissible batter slopes of 1 in 5 were imposed by the Original Consent so that the final landform would be consistent with the surrounding countryside and so as to minimise the encroachment of the final landform into the tree line relative to the horizon.. .
11. By reason of the limitations imposed under the Original Consent in relation to height and batter slopes as pleaded in paragraph 10 above, the waste emplacement approved under the Original consent had a volumetric capacity of approximately 1.38 million cubic metres, after requisite adjustments.
The Modification Application
12. By way of "Application to Modify a Consent" dated 9 February 2011, made under section 96(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), the First Respondent applied for consent to modify the Original Consent in the following terms "Increase landform height to maximum of RL 65.0m" (the "Modification Application").
13. The proposal the subject of the Modification Application sought changes to the Original Consent, which would permit:
a. an increase in the volumetric capacity of waste emplacement capacity of approximately 890,000 cubic metres;
b. an increase in the height of the waste emplacement of a further 10.5 metres above the level of [sic] approved under the Original Consent; and
c. the extension of the operational life of the Mount Vincent Waste Facility by a period approximately 11 years.
14. The First Respondent made the Modification Application on behalf of the Second Respondent such that, in effect, the Second Respondent made the Modification Application to itself.
15. The Modification Application was accompanied by a covering letter on the letterhead of the First Respondent dated 1 November 2010 and a document entitled "Maitland City Council, Mt Vincent Waste Facility, DA No. 91117, Modification" dated 22 September 2010 prepared by the First Respondent (the "Hyder Report").
The Modification Application did not comply with cl. 115(1)(g) of the EP&A Reg
16. The Modification Application did not contain an undertaking to the effect that the development, as to be modified, will remain substantially the same as the development that was originally approved, as was required pursuant to clause 115(1)(g) of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation").
17. In the premises, the Modification Application was not a valid application and the Second Respondent did not have the power to determine the Modification Application and the purported approval of the Modification Application was invalid and of no effect.
The balance of the POC (par 18 - 198) makes no reference to Hyder. Hyder's amended Points of Defence filed on 2 August 2012 admits par 1 - 6, par 12, parts of par 13 and does not admit another part, admits it made the modification application on behalf of the Council but does not otherwise admit par 14, admits par 15 and denies par 16 - 17 of the POC. In relation to the balance of paragraphs, most are not pleaded against but for par 83, 130, 150, 153, 163, 166, 168 which are not admitted. As stated in Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 to date at [14.26.20], a "statement of non-admission commonly indicates that the disputed fact is not within a party's knowledge".
I am informed that the Council and Vincent have reached an agreement and will apply to the Court by consent seeking a declaration that the modification consent is invalid and a consequential order (prayer 4 in the summons).
Hyder tendered a letter dated 9 October 2012 from its solicitor to Vincent's solicitor advising that there was no basis for making prayer 4 in the summons as against Hyder.
Vincent read part of the affidavit of Mr Leek, solicitor, dated 5 November 2012 which had the relevant development consent documents exhibited to it. It also tendered a letter from its solicitor dated 28 February 2012 which accompanied the service of the Class 4 summons advising that Hyder was joined as a necessary party given it was the applicant for the modification consent. The letter identified that as an agent for the Council it might be prudent to enter a submitting appearance.
No order for dismissal or strike out made
As will become clear in my consideration of the parties' arguments, both have some merit. Their arguments need to be considered in the context of the EPA Act which provides for the making of a modification application for a development consent by an agent of the owner of the land.
No cause of action against Hyder identified in the POC
Hyder's notice of motion relies on r 13.4(1)(b) and r 14.28(1)(a). It argued that there is no cause of action against Hyder identified in the POC, that there are no triable issues of fact as between Hyder and Vincent, and that the case concerns the Council alone. Hyder does not, and cannot, oppose any of the relief sought against the Council. It also argued that there is no basis for making prayer 4 in the summons because Vincent has not alleged that Hyder engaged in or will engage in any conduct warranting an order pursuant to s 124 of the EPA Act to remedy or restrain a breach of that Act. Vincent submitted that orders for strike out and summary dismissal are reserved for exceptional cases, relying on Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 935.
Rule 13.4(1)(b) refers to proceedings which disclose no reasonable cause of action being dismissed. Ritchie's at [13.14.15] states that the rule provides a discretionary power where an applicant's case is weak. A defect must be clearly established given the exceptional nature of the power: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 per Barwick CJ; Rocla at 945 - 946 per Cross J. In order to justify an order the offending pleading must be beyond saving by legitimate amendment: Mutual Life & Citizens Assurance Co Ltd v Evatt [1971] AC 793; (1970) 122 CLR 628 at 631; Rocla at 942.
Hyder's counsel referred to Paul Earnest Simmonsv Protective Commissioner of NSW (also known as NSW Trustee and Guardian) [2012] NSWSC 455 at [59], approved by Hallen AsJ in Eastmark Holdings Pty Ltd v Kabraji [2012] NSWSC 802 at [129], which held that r 13.4(1)(b) should be interpreted in light of s 56(1) and (2) of the Civil Procedure Act 2005. These recent cases suggest, according to Hyder's counsel, that the circumstances in which a dismissal order is made are likely to be broader than identified in Rocla in light of the overriding principles in the Civil Procedure Act to achieve the efficient dispatch of proceedings. Vincent's counsel submitted Simmons did not suggest that the high hurdles identified in Rocla had been diminished. Hyder's case is based on no cause of action against it being disclosed in the POC.
In Simmons at [26] - [27] Hammerschlag J identified two different approaches to an application for dismissal of proceedings based on no cause of action being disclosed or no reasonable cause of action being disclosed. In relation to a failure to disclose a cause of action, his Honour considered that the respondent had to show that the plaintiff's proceedings were so untenable that they could not proceed, (the approach identified in Rocla). In relation to no reasonable cause of action being disclosed his Honour also considered whether the applicant's case had no reasonable prospects of success, and took into account s 56 of the Civil Procedure Act in that context. He considers this argument further at [56] - [67] and Hyder's submissions based on that analysis appear correct. Given Hyder's submission that Vincent has not identified a cause of action against it, the generally understood strict test in Rocla applies. Where there are issues of fact as well as law as between parties a court is unlikely to dismiss proceedings.
The power to strike out pleadings under r 14.28(1)(a) because they disclose no reasonable cause of action should be exercised in plain and obvious cases only: General Steel, see Ritchie's at [14.28.40]. The same remarks made in the previous paragraph about a strict test being applied where no cause of action is identified also apply in relation to this rule.
It was agreed that in an application for summary dismissal based on the pleadings "the applicant for summary disposal must accept the truth of all allegations in the opposing pleading, including the ranges of meaning that the assertions of fact in that pleading are reasonably capable of bearing": Ritchie's at [13.4.20].
The rules of strict pleading which operate in some other jurisdictions do not formally apply in this Court but the POC are important in indicating the nature of an applicant's case. The POC par 2 states that Hyder is a company which can be sued. Paragraphs 12, 14 and 15 refer to Hyder making the modification application. For this notice of motion Hyder accepts par 14 that, as Hyder made the modification application on behalf of the Council, in effect the Council made the modification application. Vincent asserted that par 16 - 17 are allegations against Hyder as these raise the circumstance that the modification application prepared by Hyder did not contain an undertaking as required by cl 115(1)(g). Paragraph 16 is denied in Hyder's defence. Paragraph 17 states that because the modification application was not valid, the Council did not have the power to determine it and the approval was invalid. No legal consequence for Hyder is identified.
There is no allegation of a breach of the EPA Act as against Hyder or in relation to the Council's contravention of the EPA Act in the POC. Hyder is not alleged to have engaged in any activities in reliance on the modification consent. As submitted by Hyder there is no basis presented in the POC for the injunctive order sought against Hyder. These submissions can be accepted given the terms of the POC. It is correct to say that no cause of action against Hyder is identified in the POC. There is one possible issue of fact in dispute as between Hyder and Vincent based on the defence filed which denies par 16.
Vincent emphasised that the filing of a defence by Hyder was indicative of an interest in the proceedings which suggests Hyder is a proper party and no order to dismiss or strike out the case should be made. I do not agree with Vincent's submission that the filing of a defence which does not admit or denies certain matters establishes additional interest beyond any a party might otherwise have or not have. Nor does it confirm there is a cause of action as against Hyder. Vincent argued that what is denied in the defence indicates that Hyder contests substantial issues. However, the filing of a defence in proceedings including where important matters are denied or not admitted does not deprive a party of an ability to press a dismissal or strike out application which is the effect of what Vincent submitted.
Having said that, Vincent argued Hyder has an interest in the proceedings and is a proper party to the proceedings. This is a state of affairs that can exist separately from whether a cause of action is identified as I will now discuss.
Hyder is a proper party to proceedings
It is accepted, and as submitted by Hyder's counsel, Hyder is not the owner of land where the waste facility is conducted, and has no economic or other right or interest in the development consent, or the operation of the waste facility. It acted as agent for the Council in making the modification application and stated that it has no interest in the outcome of these proceedings. Whether there is an interest in the proceedings is not directly raised by Hyder's notice of motion, as Hyder submitted. However, that is a circumstance that bears on whether I should make, for example, the strike out order which would effectively result in Hyder being regarded as never having been a party in these proceedings.
Vincent and Hyder both refer in their arguments to Hyder having an interest in these proceedings but mean different interests. Hyder asserted it had no relevant interest in the proceedings. Vincent asserted a number of interests it considered Hyder had including as the applicant for the modification consent. Another was reputational interest should there be adverse findings that the assessment report prepared by Hyder to support the modification application is found to be misleading as identified in par 16 - 17 of the POC. Hyder does not share that concern about its reputational interest. A further interest identified was that Hyder is bound by the outcome of the proceedings given that the declaration made is one at large. That simply reflects the legal position that a declaration of invalidity applies to the public at large not just to the parties.
I agree with Vincent that it is not necessary to plead in the POC an interest in the development consent given Hyder's role as the applicant for the modification consent as provided in the EPA Act and the Regulation. The applicant for the development consent, here a modification of development consent, is generally considered a proper party to proceedings of this type, as Vincent submitted. One reason is because it is presumed that an applicant, including an agent, has an interest in the outcome of a development consent. Hyder stated that it has no such interest. In this case the consent authority and the owner of the development consent are the same entity: the Council owns the land and operates the waste facility. Hyder was acting for the Council in relation to the modification of the Council's own development consent. Hyder asserted, and I accept, that it has no financial or other interest in the waste facility the subject of the consent.
Nevertheless, had Hyder not been joined as a party it arguably could have successfully applied to be joined under r 6.24 of the UCPR as a proper party in the proceedings, as Vincent's counsel submitted. An applicant for development consent, including a modification consent, fulfils a statutory role. That role comes with the obligation under the EPA Act to provide truthful statements in documents prepared pursuant to the processes laid out in that Act. Failure to do so is an offence under cl 283 of the Regulation. Also by virtue of s 97AA of the EPA Act, Hyder has appeal rights in Class 1 merit review proceedings and that is a legal right it obtains as the applicant for the modification consent whether it wants to exercise that right or not.
Whether an order is made under r 13.4(1)(b) or r 14.28(1)(a) of the UCPR is a discretionary matter for me to determine. In other words while I have found that there is no cause of action as against Hyder in the POC, it does not follow that in the exercise of my discretion I must make the orders sought by Hyder under either of these two rules. There are other circumstances relevant to how I should exercise my discretion in this way. Such orders are not made lightly, as the authorities referred to in par 14 - 17 above make clear. There is at least one potentially contested issue of fact as between Vincent and Hyder identified in the POC at par 16. I consider Hyder is a proper party given its statutory role as an applicant for the modification consent made on behalf of the Council, which gives rise to rights and responsibilities under the EPA Act.
The only reason for pressing this notice of motion now when the matter will in all likelihood settle is because the question of costs is yet to be resolved. If successful in this motion, Hyder intends to seek its costs from Vincent.
There is some force to Vincent's argument that in the circumstances it was more appropriate that a submitting appearance save as to costs be filed by Hyder at the earliest opportunity to protect its position without incurring costs. This was identified to Hyder's solicitor in a letter sent at the time the summons was served.
I will not dismiss or strike out the case as against Hyder pursuant to the UCPR. Hyder is unsuccessful in its notice of motion.
Order
The Court makes the following orders:
(1) The First Respondent's amended notice of motion filed in Court on 15 November 2012 is dismissed.
(2) Costs of the hearing of the First Respondent's amended notice of motion filed in Court on 15 November 2012 are reserved.
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Decision last updated: 18 December 2012
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