Anglican Retirement Villages, Diocese of Sydney v Wollongong City Council

Mr Kennedy's notice of motion 18In his amended notice of motion dated 4 April 2013, Mr Kennedy identifies the power that he seeks to invoke in order to have the present Class 1 application summarily dismissed. Reference is made both to the Uniform Civil Procedure Rules 2005 (UCPR) and the Court Act. By reference to the UCPR he identifies - (i) Part 13 r 13.4(1)(b) or (c); and (ii) Part 14.28(1)(a) and (b) or (c) as founding his application. In the alternative, he relies upon subsections (1) and (2) of s 31 of the Court Act. I will refer to those provisions shortly. 19Before turning to the substance of Mr Kennedy's application, it is necessary to address the sources of power that he invokes to sustain summary dismissal of the proceedings. Part 14, r 14.28 of the UCPR does not identify a source of power relevant to the present proceedings. None of the rules contained in Pt 14 of the UCPR have application to proceedings brought in Class 1 of this Court's jurisdiction. That Part applies only to proceedings commenced by statement of claim or in which a statement of claim has been filed: r 14.1. 20The provisions of s 31 of the Court Act would also seem to be an inappropriate source of power to found the order that Mr Kennedy seeks. That section relevantly provides: "31 Irregularity of proceedings (1) This section applies if the Court determines, on application by a party or of its own motion, that any proceedings before it are not being dealt with in the manner appropriate to the class of jurisdiction to which they belong. (2) In the circumstances referred to in subsection (1), the Court may make either of the following orders on such terms as may be necessary: (a) an order that the proceedings be dismissed, (b) an order that the proceedings be dealt with in the appropriate manner. (3) If the Court makes an order referred to in subsection (2)(b): (a) the proceedings are taken to have been duly commenced, and (b) any step that has been taken in the proceedings is deemed to have been duly taken. (4) The Court may make such orders as it thinks fit for the future conduct of the proceedings." 21The section is framed to address a circumstance where the true nature of the proceedings is inappropriate to the class of the Court's jurisdiction invoked by the initiating process or by reason of the manner in which the issues raised evolve. Proceedings commenced in Class 1 of the Court's jurisdiction but which, in substance, involve judicial review of the decision of a statutory decision maker appropriate to be dealt with in Class 4, provides an example of a circumstance that might engage the provisions of s 31. Those provisions are not engaged when, as here, the challenge made in the proceedings is as to the jurisdiction of the Court to entertain the proceedings in any class of jurisdiction identified in the Court Act or where it is asserted that the proceedings are an abuse of the Court's process. 22Rule 13.4 of the UCPR has potential to provide a basis for Mr Kennedy's challenge. Relevantly, that rule provides: "13.4 Frivolous and vexatious proceedings (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: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim." Mr Kennedy founds his entitlement to the order sought upon paragraph (b) or (c) of subrule (1). 23In the present case, I do not see any basis upon which to found the power upon (b) of r 13.4(1). ARV has exercised a statutory right of appeal pursuant to s 97(1) of the EPA Act. As my earlier recitation of the background facts indicates, ARV had lodged a development application with the Council and that development application had been refused. On its face, therefore, the factual basis necessary to engage the provisions of s 97(1) were present. Although it is unnecessary to determine whether paragraph (b) of r 13.4(1) can ever have work to do when a statutory right of appeal is regularly exercised, the exercise of the right in the present case does demonstrate a reasonable "cause of action", assuming that such phrase is apt to be applied to that right. 24There can be no doubt that the Court does have power to dismiss proceedings if those proceedings are an abuse of its process. Such a right not only arises from r 13.4(1)(c) of the UCPR but also from the implied right of the Court, as a court constituted under the Court Act, to regulate and control its own processes (Logwon Pty Ltd v Warringah Shire Council (1993) 82 LGERA 158 per Kirby P at 160-161). 25The principles that pertain when proceedings of the present kind are sought to be dismissed as an abuse of process were discussed by Preston CJ in Nikolaidis v Pittwater Council [2009] NSWLEC 227; 171 LGERA 104. There his Honour referred to the decision of the High Court in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 where at [15] Gleeson CJ, Gummow, Hayne and Crennan JJ cited, with approval, the observation of McHugh J in Rogers v R [1994] HCA 42; 181 CLR 251 at 286. In the latter case his Honour said: "Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute." It is necessary to consider whether any of those categories of abuse are made good by Mr Kennedy.

The factual foundation for the application 26The basis of Mr Kennedy's application for summary dismissal of the proceedings is that the 2011 development application lodged by ARV does not comply with the conditions upon which the Concept Plan Approval was granted by the Minister on 21 December 2006. The obligation to comply is said to arise from paragraph (c) of the Minister's determination which was: "(c) That a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the Concept Plan, under section 75P(2)(a) of the Act." 27The grant of Project Approval was expressed to be "for the project as described in Schedule 1, subject to the modifications set out in Schedule 2." Condition A3, found in Sch 1, identified plans and documentation that were "approved as part of the Concept Plan". Among the documents so identified is Volume 3 of the Environmental Assessment prepared in respect of the ARV Land by consultants retained by ARV. Condition A3 also provided that in the event of inconsistency between "the approved documentation" and modifications identified in Sch 2 to the approval, the modifications would prevail. 28Volume 3 of the Environmental Assessment identified in Condition A3 contained a Statement of Commitments (cf s 75F(6) of the EPA Act). That Statement on behalf of ARV included under the heading "[c]ultural heritage" the following commitment: "(12) Consultation with appropriate Aboriginal community members to determine the location and significance of the 'Women's Area' which may be located over the subject site and will be undertaken as identified in the Aboriginal Archaeological Report prepared by Mary Dallas (at Appendix H). This consultation is to take place prior to sub-surface archaeological investigations which may be commissioned with respect to proposed future development. This will determine the appropriateness and possible extent of these works." 29Schedule 2 to the Concept Plan Approval included modifications to the Statement of Commitments to which I have referred. Condition B1 in Sch 2 provided: "B1 Aboriginal cultural heritage (1) The ARV Statement of Commitments concerning cultural heritage are to be modified to include measures outlined below. (2) The Proponent shall: (a) include an appropriately qualified and practising anthropologist as part of any investigations into the potential Aboriginal cultural heritage values of a 'Womens Area', and (b) submit the report by the appropriately qualified and practising anthropologist as part of any future application proposing to develop the ARV Lands." 30Mr Kennedy contends that the 2011 development application is not accompanied by a report prepared by an "appropriately qualified and practising anthropologist" who has assessed the potential Aboriginal cultural values of a "Women's Area". As a consequence, so it is submitted, the absence of such a report renders the 2011 development application an invalid development application with the consequence that the Court has no power to determine it. Expressed differently, Mr Kennedy contends that the absence of such a report is jurisdictional with the consequence that ARV's application to the Court must be dismissed. He relies upon the decision of the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55. 31For its part, ARV denies Mr Kennedy's contention on two broad bases. First, it contests the factual premise of the contention by denying that it has failed to provide a report which meets the requirement of the Condition. Secondly, it submits that even if such a report did not accompany the development application, its absence does not invalidate that application and deny the Court the power to determine it. 32The statement of facts and contentions filed by each of Mr Kennedy and ARV clearly identify joinder of issue upon the factual premise. In his statement, Mr Kennedy seeks to assert that a report relied upon by ARV as meeting the conditions of the Concept Plan Approval fails to do so. His statement asserts that the author of the report is not a qualified and practising anthropologist and he further identifies a number of shortcomings in that report which would disqualify it as meeting the requirements of the Condition. For its part, ARV has responded in its statement, not only by denying the assertions made in Mr Kennedy's statement, but giving particulars as to why it maintained that the report did sufficiently meet the requirements of the relevant conditions of the Concept Plan Approval. 33The detail identified in the competing statements identifies the fact that there is a genuinely contested issue to be determined in the proceedings. The circumstance that the contested factual issue exists is relevant to the determination as to whether proceedings ought summarily be dismissed (General Steel Industries Inc v Commissioner for Railways (NSW) 1964 HCA 69; 112 CLR 125 at 129; Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118).

The competing contentions 34In support of the factual premise for his submission, Mr Oshlack, on behalf of Mr Kennedy, relies upon an email provided to a representative of ARV in November 2012 from the author of the report upon which ARV relies. In that email she states that she is an historian and cultural heritage specialist but not an anthropologist. She gives the names of two anthropologists who might be consulted if an anthropological report is required. The report relied upon by ARV is one prepared in 2006 and 2007 and commissioned by the New South Wales Department of Environment and Conservation. 35The second material fact upon which Mr Kennedy relies to sustain his application arises from a project application submitted to the Director-General of the Department of Planning for development of the ARV Land. That application had been withdrawn prior to lodgement of the 2011 development application. As part of the project application, it is said that ARV submitted the report relied on for the purpose of the present application as satisfying Condition B1(2) of the Concept Plan Approval. It is further claimed by Mr Oshlack that when the Director-General issued his requirements for environmental assessment of that application, he repeated the requirement expressed in Condition B1(2) of the Concept Plan Approval. Thus, so it is argued, an inference should be drawn that the Director-General did not accept ARV's contention as to the sufficiency of the report upon which it relied. 36As the project application has been withdrawn, I do not consider the Director-General's action in respect of that application is relevant to the determination of Mr Kennedy's present motion. No inference of the kind asserted on behalf of Mr Kennedy could, in my opinion, be drawn. Even if it was, the Director-General's inferred opinion of the report would not determine the decision that this Court would be required to make when considering the issue that has been raised. 37Mr Kennedy also relies upon the fact that ARV sought, and the Court granted, leave to adduce new anthropological evidence in support of the development application. This circumstance, so it is submitted, makes apparent that no report meeting the requirements of Condition B1(2) of the Concept Plan Approval was lodged with the development application, with the consequence that Mr Kennedy must succeed in his present application. 38Mr Oshlack tendered an affidavit sworn by the solicitor having the carriage of this matter on behalf of ARV and filed in support of the latter's application to vacate the hearing originally fixed for the hearing of these proceedings. It will be remembered that the Registrar acceded to that application. The affidavit makes clear that ARV maintains its position that the report upon which it relies was a report that conformed to requirement of Condition B1(2) but to avoid debate as to its provenance and particularly as to the qualification of the author, the necessity to adduce new anthropological evidence was considered expedient so as to permit the efficient and timely disposal of the appeal. 39Having regard to that evidence, I do not consider that there has been any concession on the part of ARV that the factual premise for Mr Kennedy's application is so clearly established that summary dismissal of the proceedings would be appropriate. 40However, even if the factual premise upon which Mr Kennedy relies is established, he must demonstrate that the failure to meet the requirements of the conditions of the Concept Plan Approval to which I have referred clearly results in the 2011 development application being invalid. According to the submission of Mr Oshlack, such a result is the proper consequence of the decision in Timbarra. 41Mr Kennedy's reliance upon the decision in Timbarra is misplaced. The proceedings there being considered sought judicial review of a development consent granted for the extension of a gold mine. The respondent council had determined that a species impact statement under the provisions of the Threatened Species Conservation Act 1995 was not required because it was of the opinion that there was no significant affect on threatened species occasioned by the proposed mine extension. The trial judge determined that, on the material before the council, it was reasonably open for it to conclude that no such statement was required, with the consequence that the Court did not determine that question for itself in judicial review proceedings. The correctness of that determination was the central issue in the subsequent appeal to the Court of Appeal. 42Spigelman CJ (Mason P and Meagher JA agreeing) determined that in the judicial review proceedings before the court, the determination as to whether the development in contemplation required a species impact statement because the development for which consent had been granted was likely to have a significant affect on threatened species, thereby requiring a species impact statement, was a jurisdictional fact. Relevantly, that finding had the consequence that in those proceedings it was for the court to determine, on the evidence before it, whether the development proposed was likely to have the significant impact which mandated the need for a species impact statement to be obtained and provided to accompany the development application prior to its determination. 43The decision did not determine that documents first lodged with a consent authority as a development application could never constitute a valid development application unless all documents mandated by the EPA Act for such an application were lodged as part of the material initially provided to the consent authority. What is required is that all those documents mandated by the EPA Act to constitute or to accompany a development application be lodged with the consent authority before the discretion afforded by the Act to determine the application is exercised. This would include a requirement that any mandatory step to be taken for public exhibition of the application and any accompanying material occur before a determination can validly be made. 44As the Chief Justice observed in Timbarra at [37], the issue of jurisdictional fact was to be determined soley upon the proper construction of the EPA Act identifying the manner in which a development application is to be made. Clearly, condition B1(2) of the Concept Plan Approval did not involve the construction or application of any statutory provision. The statutory requirements for the making of a development application are found in s 78A of the EPA Act and cll 49 and 50 of the Environmental Planning and Assessment Regulation 2000. None of those provisions were invoked by Mr Oshlack in his submissions. 45The only statutory provision identified by Mr Oshlack was s 122 of the EPA Act which defines that which constitutes a breach of the Act. He submitted that the 2011 development application by ARV was made in breach of the EPA Act because the application was made in contravention of Condition B1(2) of the Concept Plan Approval. I do not agree with that submission. 46A development consent under Pt 4 or approval under Pt 3A of the EPA Act are instruments to be construed in a practical way on the basis that they are working documents, not usually prepared by lawyers or with the precision expected of Parliamentary Council when drafting legislation or statutory instruments (Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]; Coffs Harbour City Council v The Minister for Planning and Infrastructure [2013] NSWCA 44 at [68]). Applying that approach to the Concept Plan Approval, I do not accept that Condition B1(2) had the effect contended for on behalf of Mr Kennedy. 47Condition B1(2), read with paragraph (12) of the Statement of Commitments, has the purpose of requiring consultation with appropriate Aboriginal community members in relation to a "Women's Area" which may be on the ARV land and the provision of a report upon that process, by an anthropologist, before any application to undertake sub-surface archaeological investigation is approved under either Pt 3A or Pt 4 of the EPA Act. The undertaking of that process and the preparation of a report upon it is then seen as a tool enabling the relevant determining body to assess the impact, if any, from soil disturbance of any part of the ARV Land that may have significant Aboriginal cultural heritage. 48The requirement for a stage of the development to be "generally consistent" with the terms of the Concept Plan Approval was expressed in paragraph (c) of the Minister's determination of the Concept Plan. I have earlier quoted that paragraph (at [26]). In terms, it identifies the need for general consistency with the approval "under 75P(2)(a) of the Act." Section 75P(2) relevantly provides: "(2) If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply: (a) the determination of a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the concept plan; ... ". (Emphasis added.) 49The provisions of the subsection reinforce my view that it is the decision upon any development application that is required to be consistent with the conditions of the Concept Plan Approval. As that is the statutory provision identified, in terms, as informing paragraph (c) of the Minister's determination, I would read Condition B1(2) as requiring that the requisite report be available for consideration by the consent authority prior to determining any application "proposing to develop the ARV lands." 50So understood, even if it be assumed that the report relied upon by ARV did not fulfil the requirement of Condition B1(2) at the time of lodging its development application with the Council, the development application was not "invalid", as Mr Oshlack contends it to be. Assuming that Condition B1(2) mandates the provision of the report before any valid development consent can be granted, as I believe it does, such a report may be provided at any time before the discretion available to the Court under s 80 of the EPA Act to determine the application is exercised. 51Without conceding that the report already obtained does not meet the requirement, ARV has indicated that the further expert report that it has commissioned is a report intended to meet the requirements of Condition B1(2). As I have said, the Registrar has made directions for the provision of that report and for experts to meet with a view to preparing a joint report prior to the hearing fixed for 28 May next. 52My decision addressing the various contentions of Mr Kennedy on his notice of motion makes it readily apparent that, on the material tendered and relevant to that motion, the appeal brought by ARV is a competent appeal. Moreover, Mr Kennedy has not discharged the "heavy" onus of establishing that the present appeal involves an abuse of process (Nikolaidis at [13]). ARV has exercised its statutory right allowing the Court to review, on its merits, the development application that the Council had refused. Whether the Court is satisfied that the requisite level of assessment upon any aspect of Aboriginal heritage, consistent with that identified in the Concept Plan Approval, has been met is a matter to be determined upon the available evidence at the final hearing of the proceedings. Importantly, the appeal process is not being used by ARV to gain some advantage for which an appeal of the present kind was not intended. 53Mr Kennedy has submitted that he is "prejudiced" by the manner in which ARV now seeks to obtain the evidence which the Registrar has allowed ARV to obtain and for which directions as to service and preparation of joint reports was made before the present hearing date was fixed. Prejudice of that kind is not to be equated with the "oppression" which may found a summary dismissal application. Any perceived inadequacy in the time available to address new evidence adduced by ARV was, as Mr Oshlack acknowledges, the subject of submissions by him to the Registrar when she vacated the hearing dates originally fixed, made the directions for the preparation and exchange of evidence and fixed the new date for hearing. No application to review the Registrar's decision has been made. In the absence of such an application, I must assume that her decision involved an appropriate exercise of discretion on the evidence available to her. 54Finally, it cannot be said that the exercise by ARV of its statutory right to appeal brings the administration of justice into disrepute. I have already considered what I consider to be the correct operation of Condition B1(2). The extent to which, if at all, that Condition impinges upon the grant of consent to the present development application is to be determined upon the final hearing of the proceedings. The debate between the parties as to the sufficiency of the existing evidence to address the question of Aboriginal heritage, coupled with that which is to be obtained, involves a factual determination which one would expect to be adjudicated in the final disposition of proceedings involving an appeal brought under s 97(1) of the EPA Act.

Conclusion 55These reasons reflect those that caused me to indicate, at the conclusion of the hearing on Friday last, that I proposed to dismiss Mr Kennedy's notice of motion. I gave that indication as I did not wish to impinge upon the time necessary to be devoted to preparation of hearing by the parties that might otherwise be occasioned had I reserved my decision. 56Having announced that I proposed to dismiss the notice of motion, ARV sought an order that is costs of the motion be paid by Mr Kennedy. These being proceedings in Class 1 of the Court's jurisdiction, the determination of the application for costs is governed by r 3.7 of the Land and Environment Court Rules 2007. Subrule (2) of that rule requires that an order for costs should not be made unless the Court considers it fair and reasonable so to do in the circumstances of the particular case. 57Although Mr Robson SC, who appeared for ARV, made the application for costs, he indicated that he did not seek to further develop the submission that an order for costs should be made. Relevantly, he did not seek to identify why the presumptive position against the making of an order should be supplanted by a determination that such an order would, in the circumstances of this case, be fair and reasonable. While it may be thought that an unsuccessful summary dismissal application would, self-evidently, supplant the presumptive position, I would not be prepared so to determine in the present case without a more substantial submission. 58For these reasons I will not make any order for costs. Each party should bear his and its own costs of the motion. 59The orders that I make are therefore as follows:

1. The second respondent's amended notice of motion filed on 4 April 2013 is dismissed.
2. No order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2013