AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces

Legislative provisions

1. Section 8.15(2) of the EP&A Act confers the power to join a party to the proceedings in the following terms: 8.15 Miscellaneous provisions relating to appeals under this Division (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion - (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that - (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal.
2. Section 34(3) of the Land and Environment Court Act 1979 (LEC Act) makes provision with respect to the Court's powers and duties in the event a s 34 Agreement is reached in the proceedings in the following terms: 34 Conciliation conferences (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner - (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision.
3. As to s 34(3) of the LEC Act it has been held that the direction to dispose of the proceedings is mandatory and that the only relevant question remaining for the Court to determine for itself is whether the decision proposed by the agreement is one that is within power for the Court to make: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86. This consideration requires the Court to be satisfied of the lack of any statutory barriers to the grant of the consent and that all necessary preconditions to the grant of consent have been satisfied: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. Merit considerations that do not fall within these categories are beyond the scope of the Court's mandated enquiry.

Intervenor's submissions

1. The Intervenor submitted, as a general proposition, that it should be joined as a Respondent as a s 34 Agreement had been reached between the parties and there was no longer a contradictor in the proceedings, and that the Modification Request was important because of the nature of the use as a coal mine and the number of people who opposed the application indicated a public interest in the proposal.
2. The Intervenor's principal submission was that the s 34 Agreement was beyond power to be granted by the Court as the variations to the Modification Request (the Varied Modification Request) to which proposed order 2 of the s 34 Agreement referred were so different from that proposed in the Modification Request that it constitutes an original request for the purposes of s 75W, and thus the Court does not have jurisdiction to determine the Varied Modification Request or the current appeal as the Court does not have power to determine any amended application in an appeal that constitutes a new request: by analogy see Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 at [3]. In addition, the Intervenor submitted that a new s 75W request is, by dictate of s 75W(3), only able to be lodged with the Director-General and that the Court cannot exercise the powers of the Director-General as it has no power to accept such a request.
3. This issue goes to the power of the Court to make the s 34 Agreement which has not been addressed sufficiently in any material before the Commissioner such that they would be able to sufficiently determine these issues.
4. In addition, the Intervenor submitted that there are merit issues with the Varied Modification Request that would not be raised if the Intervenor was not joined and that it is in the public interest for these issues to be considered in the appeal as: 1. The Respondent did not submit the Varied Modification Request to the Director-General for consideration of environmental impacts; 2. The Respondent did not engage independent experts to undertake an assessment of either the Modification Request or the Varied Modification Request; and 3. There was no assessment report or any detail from the IPC identifying the reasons as to why it was now prepared to consent to the extension of the operational period of the Approval by 5 years.

Applicant's submissions

1. The Applicant submitted that it is not necessary for the Intervenor to be joined in the proceedings in order for the issues identified by it to be sufficiently raised.
2. The Intervenor's contention primarily turns on a mistake as to the nature of the Modification Request as the bord and pillar mining method proposed in the Modification Request was always an additional method and not intended to replace the existing approved longwall mining method as an option to the miner.
3. With respect to the changes in the Varied Modification Request: 1. The Minister has power to impose conditions of this type even if the Applicant had not offered the changes such that the leave provided for in order 2 of the s 34 Agreement was not necessary. If the matter was dealt with by condition and not by leave then the jurisdictional issue would not arise; and 2. The remaining variations were improvements to reduce the environmental impacts of the Approval as modified and do not comprise a fresh application so that the questions posed by the Intervenor do not arise.
4. With respect to the proposed merit contentions these do not arise in the context of a s 34 Agreement and, therefore, the provisions of s 8.15(2) of the EP&A Act are not engaged. The merit issues have been the subject of submission by many such that the application should be rejected on the principles set out in Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361 at [43], [53]-[54] which provides: 43 This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation, including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39 A. The power under s 39A is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to appeals under ss 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the types listed in s 39A are limited to the circumstances set out in paras (a) and (b) of s 39A. It is to those paragraphs, therefore, that I turn. … 53 A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission. 54 The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings.
5. It is not within the public interest for the Intervenor to be joined simply because members of the public have raised objections to the request for modification.

Respondent's submissions

1. The Respondent submitted that it neither opposed nor consented to the joinder of the Intervenor.

Section 34 agreements and the loss of a contradictor

1. In applications by an intervenor for joinder the fact that the parties propose to enter into a s 34 Agreement is often cited as the sole or overwhelming reason that they must be joined as the parties' agreement denies the Court of a contradictor in the proceedings. Such submission is, without more, an incorrect approach to the nature of s 34 agreements and the joinder power conferred by the EP&A Act.
2. Firstly, the LEC Act specifically envisages that alternative dispute resolution is to be fostered by the Court in disputes before it (and in some cases, such as 34AA, are mandatory requirements). Such legislative intent echoes the edict in the Civil Procedure Act 2005 (CPA) and the obligations on the profession to embrace such available alternatives to a hearing before the Court. Section 34 is part of that process and the mere fact that the parties have been able to resolve their dispute does not automatically entitle other persons, no matter how interested they are in the proceedings, to be joined.
3. Section 34 makes it plain that the agreement of the parties is given primacy to the ventilation of merit issues before the Court (no matter how compelling such participation could be) as the power to be exercised by the Court in such circumstances has been limited by operation of s 34(3) to consider only whether the terms of the agreement are a decision that the Court could have made in the proper exercise of its functions and, if so, the Court must dispose of the matter in accordance with the agreement.
4. This factor alone must be considered in the exercise of any discretion to join a party where a s 34 Agreement has been reached. Whilst not specifically applicable to an application for joinder under s 8.15 of the EP&A Act, the considerations referred to as the overriding purpose in s 56 of the CPA, that in civil proceedings is the facilitation of the just, quick and cheap resolution of the real issues in the proceedings, recognise further discretionary considerations that arise for considerations even if the section is not directly applicable.
5. Secondly, notwithstanding the entry into a s 34 Agreement, there is no automatic right for if a person to be joined if there is no contradictor; the considerations as provided for in s 8.15 of the EP&A Act must still be satisfied by the intervenor. In particular, the intervenor must demonstrate that they are: able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party. This factor, if (as is the present case) an agreement has been executed and provided to the Commissioner, must involve a consideration of what issues should be considered in the determination of the question under s 34(3) and not whether in the appeal at large such a consideration may arise and would require consideration by the Court: Yarranabbe Property Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 122. As was recently observed by Preston CJ in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, such factors do not include matters going to the mere merits of the application but are limited to matters where the Court must form an opinion as to statutory preconditions prior to the granting of a consent in the form proposed by the agreement. The considerations, however, may be different where a s 34 Agreement has not at the time of the application for joinder been perfected by the parties - in these reasons it is not necessary that such circumstances be considered as they do not arise on the facts of this case, or there is a basis for joinder under the consideration in s 8.15(2)(b).
6. It is in the context of these fundamental principles that the matters formulated by the Intervenor are to be considered.

Contention 1

1. The Intervenor submitted that Contention 1 turned, in part, on whether the Modification Request, as lodged, included the bord and pillar mining of the Kayuga Seam as a mining method that would be an additional alternative to the longwall mining of that seam (as already approved) or whether it was a replacement system of mining such that the longwall mining would cease to be an option to the miner. If, contrary to the submissions made by the Intervenor, the Modification Request as originally made did propose the bord and pillar method as an option in addition to the option of longwall mining, the Intervenor accepted that Contention 1(i), (v) and (vi) could not be maintained, but in that event it would still press subparagraphs (ii), (iii) and (iv) as they did not turn on the same submission.
2. The Intervenor accepted that Contention 1 must demonstrate that the contention discloses an arguable case. The Intervenor and the Applicant did not address the Court on the appropriate test for determining such a factor. Absent such submissions I will adopt a formulation that is most favourable to the Intervenor, namely a similar test to that applied on a strike out application.
3. The relevant authorities relating to the approach to be adopted in strike out applications was summarised in F Hannan (Properties) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 44 at [24] where Pepper J noted: At common law the power to strike out pleadings because they disclose no reasonable cause of action should be exercised only in plain and obvious cases. Various formulations of the test have been enunciated by the courts. A review of the cases reveals the following pertinent principles in relation to the striking out of pleadings for failing to disclose a reasonable cause of action: (a) the power to strike out pleadings should only be exercised in plain and obvious cases. That is where the case proposed is "so obviously untenable that it cannot possibly succeed" or is "manifestly groundless" (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129); (b) the mere fact that an applicant's prospects of success might be characterised as slim would not be enough to strike out a pleading (Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) [1997] HCA 8; (1997) 188 CLR 241 at 271); (c) great caution is required where factual questions are involved because it may be difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. By contrast, where the application turns on questions of law, while caution ought nevertheless be the touchstone of the exercise of the Court's discretion, unless there is no reasonable prospect that the deficiencies in what is pleaded are able to be cured by amendment, opportunities for strike out claims will arise more frequently (Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [75]); and (d) the Court is not precluded from hearing argument "even of an extensive kind" in determining whether or not the plaintiff's case is untenable (General Steel Industries at 130).
4. After consideration of that summary I adopt it as setting out the relevant considerations for determining whether in the circumstances of this case the Intervenor has disclosed a reasonable cause of action as formulated in Contention 1.
5. As noted above, the foundation argument put by the Intervenor in connection with Contention 1 was that: the Applicant had lodged the Modification Request proposing to abandon longwall mining and replace it with bord and pillar mining; in the Kayuga Seam the Applicant now seeks to amend the Modification Request to retain longwall mining as an alternative to bord and pillar mining with the consequence that the Modification Request; the consequence being has been transformed into something new. The effect of a new request is that the appeal and the Varied Modification Request cannot be considered by the Court as s 75W requires any "new" Modification Request to be lodged with the Director-General for consideration prior to acceptance and this has not occurred.
6. Whilst I accept that there is an argument that the Intervenor may have understood the Modification Request as lodged in this way, that is not the relevant inquiry. The question posed by Contention 1 requires a consideration of what was proposed by the Modification Request as it was lodged and whether what was proposed was assessed by the IPC at the time the application was determined by it.
7. It is clear on the face of the Modification Request that the Applicant was seeking to add bord and pillar as an option for the manner of mining of the Kayuga Seam. Despite the best endeavours of counsel for the Intervenor to submit otherwise the Modification Request clearly states that such method was an "alternative" to longwall mining.
8. The ordinary meaning of that term (as defined in the Macquarie Dictionary Third Edition) as relevantly being: alternative noun 1. a possibility of one out of two (or, less strictly, more) things: the alternative of remaining neutral or attacking. 2. one of the things thus possible: they chose the alternative of attacking. 3. a remaining course or choice: we had no alternative but to move. -adjective 4. affording a choice between two things, or a possibility of one thing out of two. 5. (of two things) mutually exclusive, so that if one is chosen the other must be rejected: alternative results of this or that course.
9. That meaning is consistent with the context of the word as used in the Modification Request. There is no reasonable basis to suggest the alternative meaning contended for by the Intervenor that "alternative" should be read as, in effect, "replacement". The context of the Modification Request indicates that the fact that it did not refer to longwall mining was because the Applicant was proposing to supplement the already approved method and, therefore, there was no need to refer to it to provide the particulars required to enable the Modification Request to be assessed. Further, the fact that the Modification Request referred to "proposed bord and pillar mining" was not a use that suggests a different meaning should be ascribed to the word "alternative" but rather a focus on what was being proposed in the Modification Request - bord and pillar mining as an available alternative.
10. In addition, it is clear the assessing of the Modification Request was consistent with the construction of the concept of "alternative" as is outlined above. Whilst not determinative it is clear that both the assessment by the Departmental officers and the IPC were on the basis that the modification proposal provided an option to the Applicant to mine the Kayuga Seam by either the longwall or bord and pillar method. This factor demonstrates firstly, that the assessment was undertaken on the formulation of the application referred to above, and secondly, that there was no ambiguity on the totality of the Modification Request that would produce any real doubt that the use of the term "alternative" was in its ordinary meaning.
11. For those reasons, the Intervenor has not demonstrated that Contention 1 gives rise to a reasonable cause of action in so far as it turns on whether the leave sought in order 2 of the s 34 Agreement has the effect of converting the Varied Modification Request to a new application for the purposes of s 75W, and as a consequence, was accepted by the Intervenor's Contentions 1(i), (v) and (vi) do not give rise to a matter going to jurisdiction.
12. Turning to Contention 1(iv) which relates to the need to rely upon an alternative coal handling procedure as a consequence of the removal of the previously proposed (and approved by the IPC) above ground road transport proposed. The contention as formulated misunderstands the nature of the amendment. There is no part of the Varied Modification Request that suggests that per force of a modified approval the Applicant will have an entitlement to "recommission" the conveyor transport in the Hunter Tunnel. As there is no part of the Varied Modification Request that seeks approval for the recommissioning of the Hunter Tunnel it cannot be prayed in aid of a contention that such works indicate a change in the Modification Request to render it a new application. The Applicant either has the right under the Approval to do any work necessary to use the Hunter Tunnel coal handing infrastructure or it does not. If it does, it can rely upon the Approval to do the recommissioning. If it does not, then it will have to obtain any necessary approval required before undertaking those works. In either event it does not arise as a variation to the Modification Request as is asserted by the Intervenor. On this part of Contention 1, the Intervenor has failed to demonstrate a reasonably arguable cause of action.
13. The two remaining paragraphs of Contention 1 being (ii) and (iii) are of a different character. Each relies upon a "reduction" in the scope of the Modification Request to found an argument that the Varied Modification Request is a new application and, therefore, beyond power for the reasons articulated above. Whilst in most circumstances a reduction in the scope of an application is seen to beneficial and to be endorsed, it does not follow that such a reduction could not arguably change the character of a Modification Request such that it could comprise a new request rather than a variation to such request. These questions will turn on mixed questions of fact and law and have the potential to affect the Commissioner's capacity to make the s 34 Agreement as proposed by the parties. There are presently, on the evidence tendered to me, no particular submissions or consideration of this particular issue such that the Commissioner could be assisted in determining these particulars of Contention 1. The issue is one that is reasonably arguable in the context of the legislative regime and will turn to an extent upon an understanding of the facts. Accordingly, Contention 1(ii) and (iii) are relevantly matters that the Intervenor is able to raise as an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party for the purposes of s 8.15(2) of the EP&A Act. Therefore, the Intervenor should be joined as a party on the terms outlined below.
14. I note that it was open to the Minister to impose conditions on the Modification Request requiring the modification to exclude the mining of Piercefield Seam and the removal of the above ground infrastructure, the consequence of which would be that the jurisdictional question would not have arisen. However, that is not the approach taken by the Minister or the Applicant in this case. The parties seek the Court to vary the Modification Request prior to the grant of approval thereby raising for consideration the power that the Court has to approve the Varied Modification Request.

Contentions 2-4: merit considerations

1. Contentions 2-4 are pure merit considerations in the sense that they were not matters that operated as a precondition to the grant of any consent. Whilst merit matters do not arise for consideration in an appeal that has resulted in a s 34 Agreement, the consequence of my finding as to the joinder of the Intervenor on the jurisdictional question has the consequence that the matter is not likely to proceed to a disposal of the appeal pursuant to the provisions of s 34 of the LEC Act. The Commissioner will be required to determine the whole of the matter on its merits.
2. The merit consideration relates to the proposal to increase the operation of the Approval for a further 5 years (as to Contentions 2-4) and to merit generally, irrespective of whether the term of the Approval was extended (as to Contentions 3 and 4). Each of these contentions relate to merit considerations relevant to the determination of the Varied Modification Request and are matters that appear to be no longer contentious between the parties such that the Commissioner will only be appraised of the material of the Applicant. This is insufficient to sufficiently address the matters that will arise for consideration.
3. The is particularly so when the IPC, as the Minister's delegate, has moved from a position of refusal of the 5 year extension to approval without there being disclosed to the Commissioner the reasons for that change of opinion to offset the clear expressions enumerated by the IPC to support the initial refusal for the extension of time.
4. Accordingly, as the Intervenor has demonstrated that it is appropriate that it be joined for the purposes of raising Contention 1 and it is therefore likely that the Commissioner will have to determine the merits of the appeal and the Minister is unlikely to advocate against an approval that the Intervenor should be joined to address the issues identified in Contentions 2-4 of its Statement of Contentions.
5. This subject matter of this appeal has been the subject of a lengthy assessment process and a public hearing. The Intervenor has identified specific contentions that, for the reasons that are outlined above, warrant its joinder as a party to the appeal.
6. I propose to direct the Intervenor to file a Statement of Facts and Contentions. The leave I give in connection with that direction is limited only to the contentions raised by them in Annexure A as Contentions: 1(ii) and (iii); 2; 3 and 4. As was observed by Preston CJ in Avalon Beach Property Pty Ltd v Northern Beaches Council (2017) 227 LGERA 393 at [24]: Once a person is joined as a party they have all of the rights of a party. In one sense this could include raising other issues than the five issues that I have articulated. However, the neighbour would require leave to advance any further issues. As happened in Manderrah Pty Ltd v Woollahra Municipal Council (No 2) (2013) NSWLEC 115, the Court may decline to allow any issues to be raised other than the five issues which were the basis for the joinder. I am not precluding any application being made in the future, but merely indicate that the basis for the joinder is the five issues that have been raised.
7. On the same basis and for the same reasons, I limit the issues to be raised at this juncture to the those I have identified at [57] above.

Orders

1. The Court Orders that: 1. The Hunter Thoroughbred Breeders Association be joined as a party to the proceedings; 2. The costs of the motion are reserved. If either party seeks an order for the payment of its costs of the hearing of the Notice of Motion any such application is to be made by way of Notice of Motion filed with the Court within 21 days of the date of these orders; and 3. The exhibits are returned.
2. The Court Directs that: 1. The Intervenor is to file and serve a Statement of Facts and Contentions in the proceedings limited to the matters identified in Contentions 1(ii) and (iii); 2; 3; and 4 within 7 days; and 2. The matter is listed for mention before the Registrar for directions relating to the future conduct of the appeal on 4 December 2020.

Annexure A (18652, docx) 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: 20 November 2020