ACM Landmark Pty Limited v Cessnock City Council - [2006] NSWLEC 256 - NSWLEC 2005 case summary — Zoe

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ACM Landmark Pty Limited v Cessnock City Council

[2006] NSWLEC 256

Land and Environment Court (NSW)|2005-11-17|Before: Preston CJ

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2005-11-17

Before

Preston CJ

Source

Original judgment source is linked above.

Judgment (103 paragraphs)

[1]

CITATION : ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256

[2]

APPLICANT ACM Landmark Pty Limited PARTIES : RESPONDENT Cessnock City Council

[3]

Costs :- applicant successful in class 1 appeal against council's refusal of s 96 modification application for the intensification of use of a crematorium - whether fair and reasonable to make costs order in favour of applicant - all expert evidence was in support of the modification application - resident's concerns relating to air quality, health, planning and traffic impacts had no rational evidentiary basis - council acted unreasonably having regard to evidence in maintaining opposition to applicant's appeal - council acted unreasonably in raising over 20 issues, many of which had no evidentiary foundation and were ill conceived - residents' concerns relating to heightened sense of morbidity not raised in the issues articulated by council - non-compliance with Court rules and Pre-hearing Practice Direction for pleading issues - cost order against council in relation to such conduct fair and reasonable. KEY ISSUES: Practice and Procedure:- statement of issues - class 1 appeal against council's refusal of application to modify development consent - residents' evidence called on an issue not raised in statement of issues - other issues raised without reasonable grounds - non-compliance with Court rules and Prehearing Practice Direction for pleading issues - order for costs against the council.

[61]

36 Issue 7.10 did not raise an issue that can be raised on a modification application. In any modification application there will be different evidence to that which was put in the original application. If the issue as formulated were taken literally, modification applications would never be able to be made because applicants would be bound by their conduct at the original development application stage. 37 Issue 7.14 did not raise any sensible issue. Obviously any monitoring of the existing development had to be on the basis of the capacity that was then approved, namely 400 bodies. It can be no answer to say that because monitoring was done on the basis of 400 bodies, the results of the monitoring can never be applied to predict the impacts of the proposed development which involves an expansion of the facility. One can extrapolate sensibly from the monitoring data for the existing development. 38 Thirdly, some of the issues raised might be understood as more properly relating to whether development consent should have been granted to the original development rather than to whether the modification proposed should be approved. Issue 7.9 may fall into this category. This issue, as I will explain further, was the issue upon which Mr Maston, counsel for the Council, particularly relied in support of his argument that there was a social impact associated with morbidity by reason of the operation of the existing development and hence any expansion of that development. 39 Fourthly, insofar as the issues raised by objectors supplemented the Council's issues, there was no indication as to whether the Council supported those issues or not, or whether those issues go to matters of condition or not. For example, issue 7.1 raises on its face a question of power, that is that the modification application is invalid by reason of non-compliance with Clause 115 of the Environmental Planning and Assessment Regulation 2000. 40 Issues 7.7 and 7.8 dealt with the temperature of the primary combustion chamber. Issue 7.11 dealt with the impact on tourism by the proposed modification. Issue 7.12 dealt with non-compliance with crematorium guidelines in relation to buffer zones and the height of the emission stack. Issue 7.13 dealt with the alleged inconsistency of the proposed modification with certain planning principles expounded in decisions of the Land and Environment Court, particularly in relation to intensification of use and its impact on residential amenity and its relationship to adjoining zones. 41 As I will explain later, it is no answer to say that ultimately the Council did not press these issues. They were raised as issues that the applicant needed to meet. However, it is not clear on the face on the amended statement of issues whether the Council supported the issues or whether the Council was merely recording the fact that the residents had raised those issues. 42 It can be seen that the articulation of the issues by the Council in its amended statement of issues dated 22 July 2005 goes far further than the Council's reasons for refusal given only a couple of weeks beforehand. The issues also are inconsistent with the evidence that had been provided to the Council by its own air quality expert, Mr Court, and its Director of Corporate and Regulatory Services. This is not to say that the Council cannot take a different stance but it is notable that the issues had been framed at a point when there was not any professional or expert evidence which would support the articulation of the issues made in the amended statement of issues. As I will explain, as the case unfolded, there was never any expert evidence which supported the Council's articulation of those issues. In the end, the Council was forced to rely almost solely on the evidence of the non-expert residents to make its case that there should be a refusal of the modification application.

[94]

Commissioner Watts' judgment 62 Commissioner Watts delivered judgment on 17 November 2005, upholding the appeal and granting the modification application, subject to conditions. Every issue that had been raised by the Council in its statement of issues was resolved in favour of the applicant and against the Council. 63 Commissioner Watts rejected the Council's issues that the jurisdictional or threshold requirements in s 96(1A) of the EPA Act had not been satisfied: see paragraphs 45 and 52. Further, Commissioner Watts rejected the submission made by the Council that the adverse effect on the amenity of the proposed modification, the so called morbidity issue, caused there to be more than a minimal environmental impact: see paragraph 51. 64 Commissioner Watts rejected the Council's argument that there would be an unacceptable impact on the character and amenity of the locality and sense of place of the local community: see paragraphs 51, 52, 59, 84 and 86. Once each of the particulars of impact to issue 3.1 were resolved against the Council, it must logically follow that there would not be an unacceptable impact on the character and amenity of the locality and sense of place of the local community. 65 Commissioner Watts rejected the planning issue of inconsistency with the character of the development in the locality: see paragraphs 87-89. 66 Commissioner Watts rejected the Council's submission that there was an unreasonable and unsatisfactory increase in gaseous emissions from the cremation facility: see paragraphs 57-59. 67 Commissioner Watts rejected the Council's submission that there would be adverse traffic impacts for the area or is there were, that these would be unreasonable: see paragraph 86. 68 In relation to each of these issues raised by the Council, there really was no other decision reasonably open to the Commissioner having regard to the expert evidence that had been adduced. 69 In relation to the issues raised by the residents, Commissioner Watts dealt with these concerns in paragraphs 60 to 86 of the judgment. Commissioner Watts noted, correctly, that many of the residents' concern related to the development as originally approved and not to the modifications: see paragraph 83. The Commissioner rejected the residents' concerns. In particular, Commissioner Watts found the residents' concerns did not have a real or sufficient basis in fact: see paragraphs 51, 83 and 85-86. 70 Commissioner Watts determined that the modification should be approved subject to conditions. Many of these conditions had been recommended by the experts, including Mr Court, right back in 2004. The applicant by and large accepted those suggested conditions. There was one issue that the applicant took issue with in relation to giving directions to drivers as to the route that hearses should access and leave the crematorium. The applicant was concerned that it was not able to control the drivers of the hearses because they were employed by other companies. The applicant was prepared to give a direction to the drivers, but was concerned it could not guarantee compliance. Nevertheless, Commissioner Watts decided to require that the operator should direct the drivers as well as require that the hearses access and leave the premises by a particular route. Other than that, the conditions were largely what had been proposed by others and agreed to by the applicant.

[95]

The parties' submissions on costs 71 The Court has benefited from each of the parties preparing and providing to the Court detailed written submissions on costs. I have carefully considered these written submissions. In addition, both Mr Larkin, counsel for the applicant, and Mr Maston, counsel for the Council, have made oral submissions. I have taken those oral submissions into account as well. I do not wish to do disservice to their detailed arguments that have been set out in the written submissions and in the oral arguments. Nevertheless, the arguments can be encapsulated by the following summary. 72 The applicant submitted essentially that the evidence was all one way. Certainly this is true in relation to the expert evidence. None of the expert evidence supported the Court, exercising the functions of the consent authority, refusing the modification application. Insofar as the residents' evidence was opposed to the modification application, the applicant submitted that that evidence was without a rational evidentiary foundation. 73 The applicant acknowledged that councils, when acting as consent authorities under the EPA Act, play an important role in protecting the environment and the public interest. It is important that councils pay due regard to objections raised. However, the applicant submitted that it is the duty of councils, when assessing applications, to be guided by rational evidence, rather than unsubstantiated fears. The applicant submitted that in this case the evidence of the residents fell into the latter category, not the former. The applicant submitted that it is inappropriate for a council to accept concerns of objectors which are without a rational foundation, thereby requiring an applicant to incur the substantial costs of prosecuting a class 1 appeal. It is unreasonable for a council to persist in pressing issues in the face of overwhelming evidence that concerns are not soundly based. To do so represents a dereliction of duty on the part of the council and may demonstrate the council is not acting in good faith. 74 The applicant referred to a number of cases including Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006); McCaldin v Newcastle City Council (1983) 10 APA 143; Broadwater Action Group v Richmond Valley Council (No 2) (2003) 129 LGERA 401; Krivanek v Blue Mountains City Council (No 2) [2004] NSWLEC 732 (24 December 2004); and Belgiorno-Nettis v Mosman Municipal Council [2004] NSWLEC 731 (24 December 2004).

[96]

75 In these circumstances, the applicant submitted that the Council had acted unreasonably in not making proper concessions, acted unreasonably in continuing to defend the case where it had poor prospects of success, and acted unreasonably in pursuing the case other than on a rational basis. 76 The Council contested these arguments of the applicant. The Council acknowledged that the expert evidence, as it transpired, was not in support of the issues that had been raised by the Council. Nevertheless, the Council submitted that the residents' concerns were honestly and sincerely held and it was reasonable for the Council to give voice to those concerns by maintaining its opposition to the modification application and to the appeal. The Council submitted that it was not contested by the applicant and that Commissioner Watts did not find that the residents' concerns were not genuine. 77 The Council also submitted that the residents' concerns, particularly in relation to morbidity and being surrounded by death, were not unreasonable for persons to hold. At the hearing before Commissioner Watts, many cases were cited by the Council describing the intangible, social or psychological amenity impact that uses of land such as crematoria can have. Those cases included Broad v Brisbane City Council (1986) 59 LGRA 296, as well as other specific cases dealing with crematoria, but in particular M Dubock Pty Limited v Maroondah City Council (1996) AAT of Vic (1995/33602, W. Barr, Member). 78 Although the residents' concerns sprang from the existing development, the Council submitted that the residents were concerned that any increase in the use of the crematoria would heighten their existing sense of morbidity. This was, it was submitted, a reasonable basis on which the Council could put its case. 79 The Council also submitted that it was reasonable for the Council to continue to oppose the appeal in order to secure modifications to the conditions of consent or new conditions of consent.

[100]

85 The issue relating to morbidity was said to be an issue falling under the heading of the amenity of a locality. It was an intangible, social or psychological amenity impact. As such, in accordance with paragraph 8(c) of the Pre-hearing Practice Direction, the Council was required to clearly identify the nature and extent of each impact and, where practicable, quantify that impact. Here, of course, there was no articulation that this was an amenity impact. There were vague references to amenity in issue 3.1 of the issues, however, that was explained by the very specific particulars in paragraphs (a) to (d) of that issue. Nowhere in that particularisation is there any statement of this amenity impact of heightening the sense of morbidity in the local community. The articulation in issue 7.9 that there would be significant social impacts is of course a different issue to one of an impact on amenity and in particular the heightening of a sense of morbidity. It is possible that such an issue could lead to a social impact but it is by no means clear from the articulation in issue 7.9 that that is what is being stated. 86 It is also important to recall that this was an application to modify a development consent that had been granted by the Council for the existing crematorium. Section 96(3) of the EPA Act requires that the consent authority, including the Court on appeal, take into consideration such of the matters referred to in s 79C(1) as are of relevance to the development, the subject of the application. The development, the subject of the application, is of course the modifications proposed by the applicant in this case. It is not the original development of the crematorium. It is the modification to that crematorium. In these circumstances, in order for the Council to properly articulate an impact upon amenity, it would have needed to "clearly identify" and "where practicable quantify" each impact on amenity caused by the modification of the development, and not by the development as originally approved. Nowhere in the amended statement of issues is this done. 87 In paragraph 8(e) of the Pre-hearing Practice Direction there is a requirement that if a matter is relevant only to the imposition of a condition, then that should be stated. Nowhere in the Council's articulation of the issues in the amended statement of issues is any one of the issues stated to only go to the question of conditions. This causes difficulties to the Council's argument that the Council was justified in maintaining its opposition to the appeal by the applicant so as to effect modifications to the conditions or the insertion of new conditions to the development consent. If that had been the Council's goal then it was required, pursuant to paragraph 8(e), to have articulated that certain of the issues went to matters relevant to conditions only and, of course, to have proffered earlier rather than later, a form of the conditions which the Council said ought to have been imposed. 88 Finally, paragraph 8(g) of the Pre-hearing Practice Direction states: "A failure to adequately particularise issues, or the inclusion of issues which are not relevant to the assessment of the application or which are raised without reasonable grounds, may justify an order for costs."

[102]

90 Having regard to the findings of Commissioner Watts on the evidence, which findings, having looked at the evidence, were really the only ones which were reasonably available, there was only one result which could have occurred in this case and that was that the modification application be approved. Having regard to the cases to which I referred in Grant v Kiama Council [2006] NSWLEC 70 (22 February 2006) at paragraph 15, I am of the opinion that in the circumstances of this case it is fair and reasonable that there be an order for costs, namely that the Council pay the applicant's costs of these proceedings. 91 Issues 1 and 2 were issues which related to the power of the Court to grant the approval. Having regard to the evidence, there was not a reasonable argument contrary to the proposition that the development was substantially the same development and had only minimal environmental impact. 92 The evidence that the Council had in its possession at the time of refusing the modification application and that was subsequently provided to it, was all one way and that was in favour of the modification application. That had been the advice that had been given to it by its Director. It was also the advice given to it by its independent expert, Mr Court. Subsequent experts, including court appointed experts, all came to the same conclusion. The fact that there was some fine-tuning of conditions does not take away from the central proposition that at no time had any expert recommended against granting the modification. 93 Accordingly, the Council acted unreasonably in the face of this evidence in favour of the modification application in persisting with defending the appeal. 94 Certainly, the Council acted unreasonably in raising over 20 issues, many of which had no evidentiary foundation and many of which were ill conceived. The Council acted unreasonably in raising these issues without reasonable grounds. At no time did the Council seek leave to amend those issues or to articulate those issues as only going to matters of conditions. 95 The fact that the Council relied upon the residents' evidence does not assist the Council for the reasons I have already given. They include that there was no real factual foundation for the residents' objections, and that the issue of a heightened sense of morbidity had not been squarely raised in the issues and was not put forward as being the only real issue in these proceedings. 96 In these circumstances, I consider that it is appropriate that the Council pay the applicant's costs. Order 97 The Council submitted that if the Court were minded to make an order for costs against the Council, any order be limited to after the date upon which the applicant modified its application to reduce the number of bodies to be cremated per annum from the already reduced figure of 1,000 to a further reduced figure of 800. This occurred about a month and a half after the application had been filed. I do not consider that the further reduction from 1,000 to 800 had any material effect upon the Council's conduct of the case. At no time did the Council put forward that if the applicant were to agree to a figure of 800 rather than the first sought 1,600 or the later sought 1,000, the Council would agree to grant consent to the modification. The Council always took the view that any increase beyond the 400 was unacceptable for the reasons that I have given. In these circumstances, although the applicant modified its application after the appeal had been filed in Court, that does not seem to be causative of any change in attitude by the Council. In the circumstances, I do not consider it is necessary to limit the costs order to the period after the applicant modified its application. 98 Accordingly, I order the Council to pay the applicant's costs of the appeal as agreed or assessed. 99 I order that the Council pay the applicant's costs of the application for costs, as agreed or assessed. **********