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

Catchwords

[2018] NSWCA 245 Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357 Attorney General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1[2013] HCA 3 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1[2012] HCA 3 Barrick Australia Ltd v Williams (2009) 74 NSWLR 733[2017] NSWCA 210 Brown v West (1990) 169 CLR 195[2010] HCA 19 Johns v Australian Securities Commission (1993) 178 CLR 408[1993] HCA 56 King v Bathurst Shire Council (2006) 150 LGERA 362[2006] NSWLEC 505 Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35[2019] NSWCA 28 Leimroth v Wingecarribee Shire Council [2012] NSWLEC 256 Levy v State of Victoria (1997) 189 CLR 579[1997] HCA 31 Milne v The Queen (2014) 252 CLR 149[2014] HCA 4 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326[2015] HCA 40 Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) 159 LGERA 151[2007] NSWLEC 540 Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361[2007] NSWLEC 802 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410[1996] FCA 870 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

Judgment (24 paragraphs)

[1]

The application for joinder to the appeal

On 9 November 2020, HTBA applied by notice of motion to be "joined as the Second Respondent to these proceedings under section 8.15 of the Environmental Planning and Assessment Act 1979 and/or r 6.24 of the Uniform Civil Procedure Rules 2005" (UCPR).
HTBA filed a draft Statement of Facts and Contentions that it would raise if it were to be joined as a party. HTBA raised four contentions: 1. There is no power to approve the amended Modification Request: "The Court has no jurisdiction to determine the amended 28 February 2018 modification request if leave is granted on the terms in Prayer 2(b) of the s 34 agreement (Amended Modification Request) because the amended Modification Request is so different from the original 28 February 2018 Modification Request (28 February 2018 Modification Application Request) that it constitutes an original request under repealed s 75W of the Environmental Planning and Assessment Act 1979." 2. Proposal lacks economic benefits: "The proposal ought be refused because the operation of the mine proposed does not establish the economic benefits of the extension of the approval for five years." 3. Unacceptable environmental impact from the storage, handling and disposal of rejects and operation of the washery: "The proposal ought be refused because it causes unacceptable environmental impacts, comprising visual, acoustic and air quality impacts, associated with the storage, handling and disposal of rejects on the East Site and operation of the washery over the five year extension and in respect of the Kayuga Seam if it is longwall mined." 4. Mine water balance and environmental impacts: "The proposal ought be refused because the environmental impacts to surface water and groundwater water quality associated with the use of water for dust suppression, the wash plant, storage in sediment dams, and mine water dams, and the use or disposal of water contained within the Hunter Tunnel and Wynn Seam, are unacceptable over the five year extension and in respect of the Kayuga Seam if it is longwall mine."

[2]

The primary judge's decision for joinder

HTBA's motion was heard by the primary judge on 12 November 2020. Judgment was reserved and delivered on 20 November 2020. The primary judge ordered that HTBA be joined as a party to the proceedings. The primary judge's decision relied solely on the power to join a party under s 8.15(2) of the EPA Act. Although HTBA did raise the alternative source of power for joinder under r 6.24 of the UCPR, the primary judge did not address that source of power.
Section 8.15(2) of the EPA Act provides: "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."
The primary judge's main basis for joinder was to allow HTBA to raise contention 1, which is that the decision, the terms of which the parties had agreed under s 34(3) of the Court Act, was not a decision that the Court could have made in the proper exercise of its functions. The reason HTBA so contended was that the amended modification request is so different from the original 28 February 2018 modification request, that it constitutes an original request under s 75W of the EPA Act. HTBA particularised six respects in which the amended modification request differed from the 28 February 2018 modification request.
The primary judge found that only two of these six respects were maintainable. These two respects were the second and third respects: "(2) There would be no mining of the Piercefield seam (being 78.2Mt of coal reserves). (3) The coal clearance system, which would have included road transport and additional construction, would be abandoned."
The primary judge noted that each of these two respects "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" (at [50]). The primary judge held that HTBA's contention on these two respects was reasonably arguable: "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." (at [50]).

[3]

Proposed ground 1A: No jurisdiction to join under s 8.15(2)

[4]

Dartbrook's argument that the power of joinder under s 8.15(2) is not applicable

Dartbrook's first proposed ground of appeal is framed as jurisdictional, but it really is one of power. The primary judge had jurisdiction to determine HTBA's application for joinder to the proceedings, the question was what source or sources of power were available to join HTBA to the proceedings. Dartbrook's argument is that its appeal against the IPC's decision under s 75W(5) of the EPA Act is not "an appeal under this Division", being Division 8.3 of the EPA Act, so that the power of joinder under s 8.15(2) of the EPA Act was not available to be exercised by the Court.
Dartbrook contends that the transitional arrangements on the repeal of Part 3A saved not only the entitlement under s 75W(2) of Dartbrook as a proponent to request the Minister to modify certain approvals and consents but also the right to appeal to the Court under s 75W(5) against a determination of any such request under s 75W(4).
Clause 12 of Schedule 2 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 expressly provided that "Section 75W of Part 3A continues to apply (subject to clause 3BA) to modifications of the development consents referred to in clause 8J(8) of the Environmental Planning and Assessment Regulation 2000…". On its face, this makes the whole of s 75W to continue to apply, including s 75W(2) allowing a proponent to request the Minister to modify an approval, s 75W(4) empowering the Minister to determine the request by modifying the approval or disapproving of the modification, and s 75W(5) entitling a proponent who is dissatisfied with the determination of a request to appeal to the Court.
Clause 3BA of Sch 2 of this transitional regulation did set a cut-off date of 1 March 2018 for making a request to modify an approved project under s 75W (cl 3BA(2)). Subclause (2), setting the cut-off date, extended to a modification under s 75W in relation to a development consent that is taken to be an approved project pursuant to cl 8J of the EPA Regulation (which was transferred to become Sch 4 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017)) (cl 3BA(7)(b)). However, a request to modify an approved project under s 75W continued to be dealt with under s 75W provided the request was lodged before the cut-off date (cl 3BA(3)). An "approved project" in cl 3BA includes a development consent that is taken to be an approved project pursuant to cl 8J(8) of the EPA Regulation.

[5]

HTBA's argument that the power of joinder under s 8.15(2) is applicable

HTBA accepted that the transitional provisions operated so as to allow Dartbrook to make the request to modify the development consent under s 75W(2) of the EPA Act, and the Minister, by his delegate the IPC, to determine that request under s 75W(4) of the EPA Act. HTBA disputed, however, that the transitional provisions saved the right of appeal under s 75W(5).
First, as a part of the same package of law reform as the transitional provisions, the provisions for appeals against decisions of a consent authority under Part 4 in relation to an application for development consent and for modification of a development consent were collected and re-enacted in Division 8.3 of the EPA Act. Those provisions included an express right of appeal from a determination of an application for the modification of a development consent (s 8.9), formerly located in Part 4 (s 97AA of the EPA Act). An appeal against a determination of a request for modification of a development consent made under s 75W comes within the terms of the appeal provided for by s 8.9. The development consent, if modified under s 75W, does not become an approval under Part 3A, but instead remains a development consent under Part 4 (see cl 8J(8)).
Another contextual indicator to which HTBA referred was the removal of the right of appeal by s 8.6(3) in certain circumstances, which would not apply to an appeal under s 75W(5) unless Division 8.3 has application to this type of appeal.
Secondly, the right of appeal under s 75W(5) is afforded to "the proponent of a project to which section 75K applies". HTBA notes that s 75K was repealed and, having nothing to do with "modification", is not part of the body of law continued in force by cl 8J(8).
For these two reasons, HTBA submits that it is unlikely that cl 8J(8) was intended to pick up the right of appeal in s 75W(5), but instead an appeal from a decision made under s 75W now lies under s 8.9 in Division 8.3.
Thirdly, if s 75W(5) is picked up by cl 8J(8), HTBA submits it does not apply to the IPC's determination of Dartbrook's request to modify the development consent for the Dartbrook mine. The right of appeal under s 75W(5) only arises if the project is one "to which section 75K applies". Section 75K applied only if "the project has not been the subject of a review by the Planning Assessment Commission": s 75K(1)(c). The IPC is taken to be a continuation of, and the same legal entity, as the Planning Assessment Commission: cl 7 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017. HTBA submits that the process of determination of Dartbrook's request to modify the development constituted a "review" within the meaning of s 75K(1)(c), so that the project was not a project to which s 75K applies. No right of appeal under s 75W(5) therefore arose in this case.

[6]

The power of joinder under s 8.15(2) is not applicable

I find that the right of appeal provided for by s 75W(5) was continued in force by the transitional provisions and this constituted a distinct right of appeal to the right of appeal provided for by s 8.9 of the EPA Act. The consequence is that Dartbrook's appeal against the IPC's determination of the request to modify the development consent was an appeal under s 75W(5), which is not an appeal under Division 8.3.
Clause 12 of Sch 2 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 expressly provided that s 75W continues to apply to modifications of the development consents referred to in cl 8J(8). Clause 8J(8) expressly provided that s 75W applies to any modification of the development consents referred to in the clause. The development consent for the Dartbrook mine was one such consent referred to in cl 8J(8). The upshot is that, by operation of both cl 12 of Sch 2 and cl 8J(8), the whole of s 75W continues to apply to Dartbrook's request to modify the development consent (under s 75W(2)), the IPC's determination of this request (under s 75W(4)) and Dartbrook's appeal to the Court against the IPC's determination of the request (under s 75W(5)).
There is no justification in the text of these transitional provisions to construe s 75W as applying only to a request to modify a development consent and the determination of this request, but not to an appeal against the determination of the request.
Part 3A of the EPA Act was established as a distinct regime for obtaining approval, and modifying any approval, for projects to which Part 3A applied, and operated separately from the regime in Part 4 of the EPA Act for obtaining development consent, and modifying development consent, for developments to which Part 4 applied. For this reason, separate rights of appeal were established against determinations of applications and requests under Part 3A and applications under Part 4. An example is the right of appeal under s 75W(5) of a proponent of a project who is dissatisfied with a determination under s 75W(4) of a request under s 75W(2) to modify an approval for a project under Part 3A. This right of appeal is distinct from the separate right of appeal under the former s 97AA and the current s 8.9 by an applicant who is dissatisfied with a determination of a consent authority with respect to the applicant's application under the former ss 96 or 96AA and the current ss 4.55 and 4.56 to modify a development consent under Part 4.

[7]

HTBA's argument that joinder is supported by an alternative source of power

The validity of the primary judge's decision to join HTBA as a party to the appeal is not necessarily affected by the primary judge mistaking the source of power to make the decision: Brown v West (1990) 169 CLR 195 at 203; [1990] HCA 7; Attorney General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 at [175]. Validity depends simply on whether a relevant power existed to support the decision: Johns v Australian Securities Commission (1993) 178 CLR 408 at 426; [1993] HCA 56. As was held in Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 at [34]: "A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362 [124]: 'If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.'"
The latter point is important. As Meagher JA observed in Bondi Beach Astra Retirement Village Pty Ltd v Assem [2020] NSWSC 1814 at [76]: "A mistake as to the source of a power will ordinarily be relevant to the validity of an exercise of power only if it leads to the disregard of requirements which condition the power, such as the formation of a particular opinion or state of satisfaction."
In this case, HTBA contends, there was an alternative source of power capable of sustaining the judge's decision to join HTBA to Dartbrook's appeal under s 75W(5). This was UCPR r 6.24. HTBA referred to this rule as a source of power in the alternative to s 8.15(2) of the EPA Act in its notice of motion applying to be joined as a party to the proceedings. That rule applies to all civil proceedings in the Land and Environment Court: UCPR r 1.5. Rule 6.24(1) provides: "If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party."

[8]

Dartbrook's argument that no alternative source of power is applicable

Dartbrook contests that UCPR r 6.24 could support the primary judge's decision to join HTBA as a party to the appeal.
First, the criteria under r 6.24(1) are different to the criteria under s 8.15(2), so that the primary judge's decision that the criteria under s 8.15(2) are satisfied cannot suffice to establish that the criteria under r 6.24(1) are satisfied: Eastman v Director of Public Prosecutions (ACT) at [124].
Secondly, r 6.24 does not support a wide ranging discretion to join disaffected parties to civil proceedings. As noted in Burton v Babb [2020] NSWCA 331 at [42]: "Although joinder under r 6.24 is discretionary, no occasion for the exercise of discretion arises unless and until the court is satisfied of the existence of one of the two pre-conditions already discussed [in r 6.24]."
Dartbrook contends that neither of the pre-conditions in r 6.24(1) were satisfied, so that no occasion for the exercise of the discretion arose.
Thirdly, Dartbrook contests that the second precondition, that joinder "is necessary to the determination of all matters in dispute", was established. Dartbrook submits that at the time of HTBA's application for joinder, there were no matters in dispute between the Dartbrook and the Minister in relation to which HTBA's joinder could be necessary. Indeed, Dartbrook submits, it was because the question of jurisdiction of the Court to dispose of the proceedings in accordance with the decision agreed between the parties and all merit issues were not in dispute by reason of the parties having reached agreement under s 34(3) of the Court Act that the primary judge considered that the discretion to order joinder under s 8.15(2)(a) was enlivened.
Fourthly, Dartbrook further submitted that regardless of whether there were any matters in dispute, the joinder of HTBA was not "necessary" to the determination of any matter in dispute. Dartbrook contends that in order for the joinder of a person to be "necessary", the party's rights against or liabilities to any person need to be directly affected by a decision or order in the proceedings, citing Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-56; State of Victoria v Sutton (1998) 195 CLR 291 at 316; [1998] HCA 56; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131]; [2010] HCA 19; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [51]-[53]; and Burton v Babb at [23]-[26].

[9]

Alternative source of power not capable of supporting decision for joinder

I find that UCPR r 6.24(1) is not an available source of power capable of supporting the primary judge's decision to join HTBA to the proceedings. The reason is that the primary judge did not consider and form an opinion of satisfaction regarding all of the requirements upon which a valid exercise of the power in r 6.24(1) depends. I will explain my reasons for so finding.
A court can exercise the discretionary power under r 6.24(1) to join a person as a party to proceedings in two circumstances: first, where the court considers that the person "ought to have been joined as a party" and, secondly, where the court considers that the person is "a person whose joinder is necessary to the matters in dispute" in the proceedings. In the present case, the first circumstance is not applicable; the question is whether the second circumstance is applicable.
In both circumstances, the outcome of the exercise of the discretionary power is the joinder of the person as a party to the proceedings. There are number of different ways in which a person may be present before the court, of which being joined as a party to the proceedings is one. Joinder as a party, however, is the particular mode of presence before the court that r 6.24(1) requires to be necessary to the determination of all matters in dispute in the proceedings. Under the second circumstance, this outcome of joinder as a party needs to be "necessary" in order to achieve "the determination of all matters in dispute" in the proceedings.
The court's consideration of this second circumstance in r 6.24(1) involves, first, identifying what are "all matters in dispute" in the proceedings; secondly, ascertaining that those matters need "determination" by the court in the proceedings; and thirdly, evaluating that the joinder of the person as a party is "necessary" to achieve "the determination of all matters in dispute".
As to the first consideration, what will constitute a matter in dispute in the proceedings will depend on the nature of the proceedings. The proceedings in the decisions on joinder as a party to which Dartbrook referred involved private, inter-parties disputes. In such proceedings, the matters in dispute are mostly defined and delineated by the parties in the pleadings. However, the phrase "all matters in dispute in the proceedings" is not limited to matters arising on the existing pleadings and "may also include those disputed issues of fact which are subjacent to the pleadings": Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38. In contrast, the proceedings involved in the present case are an administrative or merits review appeal against the decision of a public authority to determine an application for a form of statutory approval. The matters in dispute in such proceedings are not limited to the issues joined between the parties to the appeal, in the statement of facts and contentions that serve the purpose of pleadings in an administrative appeal in the Court, but necessarily must also involve issues going to the power of the Court, exercising the administrative functions of the public authority on the appeal, to determine the application for approval.

[10]

The primary judge's joinder decision is invalid

The primary judge purported to join HTBA as a party to the proceedings exercising the power in 8.15(2) of the EPA Act, but that power was unavailable in the proceedings brought by Dartbrook. The primary judge's decision is not capable of being supported by the other source of power in r 6.24(1) as the primary judge failed to meet all of the requirements upon which that power is subject.
Proposed ground 1A should be upheld.

[11]

Proposed ground 1: Error in joining on the basis of the jurisdictional question

[12]

Dartbrook's arguments that the primary judge erred

The jurisdictional question raised by HTBA in contention 1 was that the Court had no jurisdiction to dispose of the appeal in accordance with the decision agreed between the parties because the terms of that decision require the Court, first, to grant leave to Dartbrook to amend the application it had made under s 75W(2) requesting the Minister to modify the development consent and, secondly, to approve the application to modify the consent as so amended. HTBA contends that the amended modification application would be so different from the original modification application as to amount to a new modification application that the Court could not entertain. Dartbrook identifies three errors of the primary judge in dealing with HTBA's contention: "The first was in reasoning that the changes between the original Mod 7 Application and the varied modification request in the s 34 agreement could arguably comprise a new s 75W request such as the Commissioner lacked power to dispose of the proceedings. The second was in finding that there was no evidence before her Honour of particular submissions or consideration of this particular issue. The third was in determining the question posed by s 8.15(2) of the EPA Act on the basis that the proposed intervenor need only show a contention not liable to be struck out as a pleading." (at [25] of applicant's submissions).
As to the first error, Dartbrook contends that the decision, in the terms agreed between the parties, was a decision that the Court "could have made in the proper exercise of its functions". Dartbrook argues that this requirement in s 34(3) of the Court Act refers to the power of the Court to allow an applicant to amend an application to modify an approval under Part 3A or a development consent under Part 4, not whether the power ought to be exercised in any particular instance.
Dartbrook accepted that there is no express power in the EPA Act for an applicant to amend an application to modify an approval under Part 3A or a development consent under Part 4 or for the Minister or a consent authority respectively to agree to any such amendment, such as there is for an amendment of a development application under cl 55 of the EPA Regulation. Dartbrook contended, however, that there was an implied power to do both.
Dartbrook firstly contended, relying on Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) 159 LGERA 151; [2007] NSWLEC 540 at [29], that "a power to apply must ordinarily include a power to amend". Hence, an applicant who made an application to modify a development consent is allowed to amend that application: see also Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 at [30]-[32].

[13]

HTBA's arguments that the primary judge did not err

HTBA contested that the primary judge erred in applying the statutory test in s 8.15(2)(a) of the EPA Act. The question of whether HTBA is able to raise one or more issues that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if HTBA were not joined as a party, was a matter of opinion for the primary judge. The opinion the primary judge formed, that the contentions raised by HTBA were ones that should be considered but were not likely to be considered if HTBA were not joined as a party, was not an unreasonable one.
HTBA addressed each of the three alleged errors raised by Dartbrook. As to the first error, the question of whether the amendments to the application for modification of the development consent were so great as to cause the application to be a new modification application and outside the scope of s 75W was still an issue even if it was a matter of opinion for the Commissioner to decide. HTBA sought to raise, by contention 1, that the amendments did have this effect, so that the decision agreed between the parties to allow the amendments and to approve the amended modification application was not one that the Court could have made in the proper exercise of its functions.
As to the second error, the primary judge was not wrong to conclude at [50] that there were "no particular submissions or consideration of this particular issue such that the Commissioner could be assisted in determining these particulars of contention 1." Even if this finding did involve a mistake of fact, it is not one properly the subject of an appeal under s 57 of the Court Act, let alone an appeal from an interlocutory decision of practice and procedure.
As to the third error, the primary judge did not determine, contrary to Dartbrook's argument, that "the mere existence of an arguable or 'reasonably arguable' contention about the Commissioner's" jurisdiction to grant the approval was sufficient to warrant joinder, nor that joinder is warranted merely if a contention can be identified that would not be struck out if it were a pleading. In considering whether there was a reasonably arguable case, the primary judge was addressing HTBA's concession (see at [39] of the judgment) that the joinder application should fail if HTBA was not raising a reasonably arguable case. As the terms of the judgment at [50] make clear, the primary judge was also separately addressing whether it was considered that the issue would be likely to be sufficiently addressed without joinder and the primary judge's opinion was that contention 1(ii) and (iii) were matters that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if HTBA were not joined as a party for the purposes of s 8.15(2) of the EPA Act. This also followed the primary judge's addressing of the broader principles and arguments in [19]-[37] of the judgment. This was a conclusion reasonably open to the primary judge.

[14]

The primary judge not shown to have erred on a question of law

I do not accept that Dartbrook has established that the primary judge made the three errors alleged in deciding to join HTBA to raise contention 1, that the Court lacked jurisdiction to allow the amendment of the request to modify the development consent. I will start with the first error alleged, that the primary judge erred in finding that the jurisdictional issue raised by HTBA in contention 1 was reasonably arguable. I find that the primary judge did not err, on a question of law, in deciding that it was reasonably arguable that the Court lacked jurisdiction to allow the amendment of the request to modify the development consent sought by the parties in their agreement.
Dartbrook's argument joins issue with HTBA's argument. HTBA's argument, raised in contention 1, is that the amendments of the request for modification of the development consent for which leave of the Court was sought by paragraph 2(b) of the terms of the decision agreed between Dartbrook and the Minister, are outside the power of Dartbrook as a proponent or the Minister and on appeal the Court as consent authority to make. HTBA contends that the scope of the power to amend or allow amendment of a request for modification of a development consent or approval is limited. The amendments of the request for modification of the development consent agreed between Dartbrook and the Minister are so great as to cause the request to be a new request which the Court has no jurisdiction to accept. Dartbrook's argument is that the particular amendments agreed between Dartbrook and the Minister, for which the Court's leave was sought, clearly did not exceed the scope of the power to amend the request for modification of the development consent, so that it could not be said that HTBA's contention that they did was reasonably arguable.
Both HTBA's argument and Dartbrook's argument assume that there is power to amend a request for modification of a development consent or an approval, but join issue on what is the scope of the power of amendment. In order to resolve this dispute as to the scope of any power to amend a request or application to modify a development consent or an approval, it is first necessary to identify whether there is power and, if so, what are the terms of the power to amend a request or application to modify a development consent or an approval.

[15]

Proposed ground 2: Error in concluding that merit considerations warranted joinder

[16]

Dartbrook's argument that the primary judge erred

By proposed ground 2, Dartbrook challenges the primary judge's decision "that the Intervenor should be joined to address the issues identified in Contentions 2-4 of its Statement of Contentions" (at [55]). Dartbrook contends that the primary judge erred in deciding in two respects. First, once the parties had reached agreement on the terms of a decision in the proceedings that would be acceptable to the parties, there were no merit issues remaining to be considered or determined by the Court. Section 34(3)(a) of the Court Act provides that where agreement is reached between the parties as to the terms of a decision in the proceedings that is acceptable to the parties, the Commissioner must dispose of the proceedings in accordance with the decision. The provision leaves no room for a consideration of "merit considerations". Such merit considerations are subsumed by the agreement reached between the parties: Al Maha Pty Ltd v Huajun Investments Pty Ltd at [71]-[79].
The primary judge accepted that contentions 2-4 raised by HTBA "relate to merit considerations" and "are matters that appear to be no longer contentious between the parties" (at [53]). Yet, the primary judge nevertheless joined HTBA in order "to address the issues identified in contentions 2-4" (at [55]). The primary judge thereby erred in joining HTBA to raised merit issues that were no longer in contention and hence could not be issues that "should be considered in relation to the appeal", being the first requirement in s 8.15(2)(a) of the EPA Act.
Secondly, there was circularity in the primary judge's reasoning. The primary judge accepted that the merit considerations raised by HTBA's contentions 2-4 were "no longer contentious between the parties". Rather than that accepted finding leading to the conclusion that HTBA should not be joined as it cannot raise an issue that should be considered in relation to the appeal, the primary judge concluded to the contrary that it justified joining HTBA because otherwise these issues will not be sufficiently addressed on the appeal. Dartbrook submits that the error in this conclusion is that it ignores the critical first question raised by s 8.15(2)(a) of whether these merit issues "should be considered" in relation to the appeal. Only if the issue should be considered does the inquiry move to the second question raised by s 8.15(2)(a) of whether the issues are not likely to be sufficiently addressed if HTBA were not joined as a party.

[17]

HTBA's argument that the primary judge did not err

HTBA's response was twofold. First, even if the primary judge did err in the manner alleged by Dartbrook in joining HTBA to raise contentions 2-4, such error would not vitiate the primary judge's orders from which the appeal is made, as the primary judge had already decided to join HTBA to raise contention 1. Once HTBA is joined it becomes a party for all purposes: Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 396. Accordingly, any error in joining HTBA for the additional reason of being able to raise contentions 2-4, where the primary judge had already decided to join HTBA so as to be able to raise contention 1, cannot vitiate the primary judge's decision.
Secondly, and relatedly, the primary judge's decision to join HTBA to raise contentions 2-4 was not an independent basis for joinder, but only arose once the primary judge had found that HTBA should be joined to raise contention 1. The primary judge was being realistic in recognising that the consequence of joining HTBA to raise the jurisdictional issue in contention 1 would be that all three parties would not be prepared to dispose of the proceedings in terms of the s 34 agreement that had been reached by only two of the parties, Dartbrook and the Minister. In that circumstance, the Commissioner could not dispose of the proceedings under s 34(3)(a) and instead would need to terminate the conciliation conference under s 34(4) of the Court Act. This is what the primary judge was saying in [55].
HTBA further submitted that the primary judge was not required to reapply s 8.15(2)(a) to contentions 2-4 in circumstances where the primary judge had already determined that HTBA should be joined to raise contention 1, having applied s 8.15(2)(a) to that contention.

[18]

The primary judge not shown to have erred on a question of law

I find that Dartbrook has not established that the primary judge has made a material error of law of the kind required for an appeal under s 57(1) of the Court Act. Although the primary judge, in the abbreviated manner in which she expressed her reasons for allowing HTBA to be joined to address the issues identified in contentions 2-4, might on one view be seen to have made the errors raised by Dartbrook, I consider that a fair reading of her reasons reveals that the primary judge's logic is that explained by HTBA, which does not reveal error.
The primary judge found that "the intervenor has demonstrated that it is appropriate that it be joined for the purposes of raising contention 1" at [55]. Once HTBA is joined as a party to the proceedings, the primary judge found, it is "likely that the Commissioner will have to determine the merits of the appeal" (at [55]). The unstated, but obvious, reason is that HTBA is not likely to reach agreement with the other two parties as to the terms of the decision in the proceedings that would be acceptable to all of the parties. HTBA is not likely to agree to the agreement that had already been reached between the other two parties, Dartbrook and the Minister, as that involves the Court modifying the development consent so as to allow mining for another 5 years, a result that HTBA opposed. The primary judge had earlier recognised this was the likely result: "The natural consequence of the joinder of an additional party to these proceedings is that the s 34 Agreement cannot be made unless all parties (including any joined party) agree to its terms" (at [18]).
The result would be that it could no longer be said that "agreement is reached between the parties… as to the terms of a decision in the proceedings that would be acceptable to the parties", which is the necessary condition to engage the obligation of the Commissioner to dispose of the proceedings in accordance with the decision. In that circumstance, the Commissioner will have no option but to terminate the conciliation conference under s 34(3). The proceedings will then need to be fixed for a hearing before another Commissioner or judge, unless the parties consent to the Commissioner disposing of the proceedings under s 34(3)(b). Either way, however, there will be a hearing of the appeal, in which there will be a consideration and adjudication of merit considerations going to the acceptability of the proposed modifications of the development consent. This explains why the primary judge found that "it is therefore likely that the Commissioner will have to determine the merits of the appeal" (at [55]).

[19]

Proposed ground 3: Joinder was legally unreasonable

[20]

Dartbrook's argument that the primary judge erred

Dartbrook's proposed third ground of appeal is that the primary judge's decision to join HTBA "in all the circumstances was unreasonable and the primary judge did not properly exercise the discretion reposed in the Court below by s 8.15(2) of the EPA Act". Dartbrook identified two relevant considerations supporting this ground.
First, the primary judge did not refer to or consider the fact that HTBA would, in the absence of joinder, have no right of appeal to the Court against any decision of the Minister to approve the request to modify the development consent under s 75W of the EPA Act. That section only gives the proponent a right of appeal to the Court, under s 75W(5).
Second, the primary judge made a "fundamental error of fact" in [51] of the judgment. The primary judge noted 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 approval of the above ground infrastructure…". The primary judge found that this had not been done: "However, that is not the approach taken by the Minister or the Applicant in this case. The parties seek [for] 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." (at [51]).
Dartbrook contends that this finding is factually incorrect. The parties not only sought for the Court to grant leave to Dartbrook to make minor amendments to the application to modify the development consent, they also sought for the Court to approve the application to modify the development consent on the conditions in annexure A to the parties' agreement. These conditions included conditions 1.1(a)(xi), 2.3(c) and 2.4, which required the modification to exclude the mining of the Piercefield Seam and the removal of the above ground infrastructure, the two things the primary judge identified the conditions could have required but did not require.

[21]

HTBA's argument that the primary judge did not err

HTBA disputed at the outset that this proposed third ground of appeal raises a question of law, which is necessary for an appeal under s 57(1) of the Court Act against a decision or order, including an interlocutory decision or order, in Class 1 of the Court's jurisdiction: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 524; [2014] NSWCA 105 at [4]. The two considerations identified by Dartbrook, which concern incorrect factual findings, do not demonstrate what the alleged unreasonableness is or in what respect the primary judge is alleged to have not properly exercised the discretion under s 8.15(2) of the EPA Act.
In respect of the first consideration, HTBA submits that, on a fair reading of the primary judge's reasons as a whole, the primary judge should be taken to be aware of the fact that HTBA would, in the absence of joinder, have no right of appeal to the Court. First, HTBA's lack of a right of appeal against the Minister's determination of Dartbrook's request to modify the development consent was the very reason for HTBA applying to be joined as a party to the proceedings, either under s 8.15(2) of the EPA Act or r 6.24 of the UCPR. The primary judge cannot not have known that HTBA had no right otherwise to appeal to the Court.
Secondly, the primary judge extracted the statement of principle in Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 at [43] that the EPA Act draws a distinction between different types of development and the different rights to be a party to an appeal to the Court for the different types of development. This evidences consideration by the primary judge of the question of who has rights of appeal.
Thirdly, the primary judge expressly noted in argument at the hearing of the application for joinder that "the statutory scheme doesn't give a right of appeal" to HTBA "unless they're joined as a party" (12/11/20 T60:1-2) and was informed by HTBA's counsel that "there was never any appeal right for the purposes of s 75W" and "it's not one of the cases where my client would have an appeal right" (12/11/20 T62:8-9).
Finally, HTBA submits that a lack of a right of appeal of the person applying for joinder is not a consideration required by s 8.15(2) of the EPA Act in any event. The significance of the principle noted in Morrison Design Partnership Pty Ltd v North Sydney Council at [43] was to underscore the fact that joinder is limited by the circumstances set out in the subparagraphs of s 8.15(2) and is not a de facto appeal right. The primary judge applied these terms of s 8.15(2).

[22]

The primary judge not shown to have erred on a question of law

I find Dartbrook has not established that the primary judge made an error of law of a kind sufficient to found an appeal under s 57(1) of the Court Act. I accept HTBA's submissions that the primary judge did not fail to consider the fact that HTBA did not have a right of appeal to the Court against the Minister's decision in relation to Dartbrook's request to modify the development consent. The primary judge was clearly aware of this fact, as HTBA has explained.
The primary judge also did not misunderstand that the parties sought for the Court to grant approval on conditions. The primary judge set out the terms of the decision agreed between the parties, which included paragraph 2(d) that the request to modify the development consent be approved subject to the conditions in annexure A. Those conditions implemented the amendments to the modification request for which leave was sought in paragraph 2(b).
The primary judge's observation in [51] of the judgment was directed to a different point. She was simply pointing out that the parties did not need to have sought the Court's leave to amend the modification request, as they had done in paragraph 2(b) of their agreement, because the modification request without amendment could have been approved on conditions that effected the amendments they sought. The primary judge observed that if this approach had been taken, there would have been no basis for HTBA's contention that the Court has no jurisdiction to grant leave to the applicant to amend the modification request. The primary judge noted, however, that this was not the approach taken by the parties. They did seek for the Court to grant leave to the applicant to amend the modification request prior to the Court granting approval on conditions, thereby raising for consideration the power the Court has to allow the amendment of the modification request and to approve any amended modification request.
No error of law is revealed in the primary judge's observation. Proposed ground 3 should be rejected.

[23]

Disposition of the application for leave to appeal

With respect to proposed ground 1A of appeal, Dartbrook has established that the primary judge mistook the source of power to join HTBA as being 8.15(2) of the EPA Act, and that the primary judge's decision to join HTBA cannot be supported by the alternative source of power in r 6.24 of the UCPR. Proposed ground 1A should therefore be upheld. Dartbrook has otherwise not established its proposed grounds 1, 2 or 3 of appeal.
In these circumstances, leave to appeal should be granted with respect to proposed ground 1A, but not for the other proposed grounds. Dartbrook's appeal on proposed ground 1A should be upheld and the orders of the primary judge joining HTBA as a party to the proceedings in the court below set aside.
The upholding of proposed ground 1A means that neither of the bases relied on by HTBA for joinder as a party are sustainable. However, HTBA's notice of motion not only sought joinder as a party but also in paragraph 4 "such further or other orders that the Court thinks fit." This prayer for relief is ample enough for HTBA to seek an order allowing HTBA to appear either under s 38(2) of the Court Act or as an amicus curiae to inform and assist the Court in the determination of the jurisdictional question of whether the decision agreed between the parties under s 34(3) is a decision the Court could have made in the proper exercise of its functions.
HTBA has at the hearing of this appeal foreshadowed that if Dartbrook and the Minister no longer seek for the Court below to grant leave to Dartbrook to amend the application to modify the consent, but instead request the Court to approve the application with conditions to achieve the same result, it would wish to submit that such a decision would also not be a decision that the Court could have made in the proper exercise of its functions. If HTBA wishes to make either application, it should amend its notice of motion in the Court below accordingly.
Equally, Dartbrook and the Minister may wish to alter the terms of the decision that they have agreed. As I have indicated, the term of the decision that the Court grant leave to Dartbrook to amend its application to modify the development consent is not one the Court could have made in the proper exercise of its functions. But that term of the decision is unnecessary. The Court, exercising the functions of the consent authority, can grant approval to the application to modify the development consent as made on conditions. This course is proposed in one of the terms of the decision. Dartbrook and the Minister can agree to altered terms of a decision that would be acceptable to them and then seek for the Court to dispose of the proceedings in accordance with that altered decision.

[24]

Amendments 16 December 2021 - Coversheet - "Werdeman v Societe Generale" changed to "Werderman v Societe Generale" [14] - "Werdeman v Societe Generale" changed to "Werderman v Societe Generale" [15] - "Brennan J" changed to "Brennan CJ" [20] - "Brennan J" changed to "Brennan CJ" [57] - "coal handling and preparation plan" changed to "coal handling and preparation plant" [113] - "alternative to the approval longwall mining" changed to "alternative to the approved longwall mining" [114] - "being first not to proceeding with the alternative" changed to "being first not to proceed with the alternative" [144] - "(under s 75(4))" changed to "(under s 75W(4))" [144] - "(under s 75(5))" changed to "(under s 75W(5))" [241] - "(s 96(2) and s 96AA(2)" changed to "(s 96(2) and s 96AA(1)" [245] - "administrative fragility" changed to "administrative rigidity" 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: 16 December 2021

Tuck & Sons Ltd [1956] 1 QB 357 Attorney General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; [2013] HCA 3 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3 Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 Bondi Beach Astra Retirement Village Pty Ltd v Assem [2020] NSWSC 1814 Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210 Brown v West (1990) 169 CLR 195; [1990] HCA 7 Burton v Babb [2020] NSWCA 331 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424; [2010] NSWCA 263 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362 Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259; [2001] NSWLEC 140 Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 Fire Auto and Marine Insurance Ltd v Greene [1964] 2 QB 687 Flaherty v Hawkesbury City Council (2020) 244 LGERA 51; [2020] NSWLEC 29 Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 85 LGERA 339 Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 King v Bathurst Shire Council (2006) 150 LGERA 362; [2006] NSWLEC 505 Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 Leimroth v Wingecarribee Shire Council [2012] NSWLEC 256 Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 Milne v The Queen (2014) 252 CLR 149; [2014] HCA 4 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) 159 LGERA 151; [2007] NSWLEC 540 Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Pilkington v Secretary of State for the Environment (1973) 26 P&CR 508; [1974] 1 All ER 283 Positive Change for Marine Life Inc v Byron Shire Council [2015] NSWLEC 147 Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 Re Will of Gilbert (1946) 46 SR(NSW) 318 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121 Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 Valiant Timber and Hardware Co Pty Ltd v Blacktown City Council (2005) 144 LGERA 33; [2005] NSWLEC 747 Vandervell Trustees Ltd v White [1971] AC 912 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 524; [2014] NSWCA 105 Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 Werderman v Societe Generale d'Electricite (1881) 19 Ch D 246 Category: Principal judgment Parties: AQC Dartbrook Management Pty Ltd (Applicant) Minister for Planning and Public Spaces (First Respondent) Hunter Thoroughbred Breeders Association Inc (Second Respondent) Representation: Counsel: Mr R P Lancaster SC, Ms N A Wootton (Applicant) Submitting appearance (First Respondent) Mr G R Kennett SC, Mr A Stafford (Second Respondent)

Orders

For those reasons, the discretion exercised by the primary judge miscarried. There should be a grant of leave, the appeal allowed, and the orders made on 20 November 2020 set aside. It is not necessary separately to address grounds 2 and 3, which overlap with the misapprehension of the power to join.
Dartbrook's primary position was that this Court also should not determine ground 1 if it succeeded, as it has, on ground 1A. It concluded its oral submissions in this Court as follows: "On our primary position the appeal will be allowed and her Honour's decision to join set aside and then the Senior Commissioner would be presented with the s 34 agreement and have to form a view that it's able to be made a decision of the Court". That would leave it to the Senior Commissioner to determine, inter alia, HTBA's submission that the amendment to Dartbrook's modification application to which the Minister had agreed was beyond power, as ground 1 contends.
Preston CJ of LEC has expressed the view that there was no power to amend Dartbrook's modification application. Whether or not that is so is a pure question of law, and one which is capable of being determined for the first time in this Court. However, we are of the view that it is inappropriate to address that question. That is because it was common ground in the court below that there was power, in accordance with decisions such as Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245. It was also common ground in the parties' submissions in this Court; the debate instead was whether the alterations were so significant as to amount to a "new" modification application. True it is that in the course of argument, it was suggested that there was an anterior point, namely, whether there was power to accede to any amendment of a modification application. The fact that this was only raised during the hearing meant that this Court received incomplete submissions on the point. There is no good reason to resolve a point which the appellant would prefer not to be decided, in circumstances where that point was not advanced at first instance and where it was not as fully argued as it might be in this Court, and which (as is noted below) may not need to be decided at all.
The position now, in May 2021, is quite different from the extreme urgency which attended HTBA's application in November 2020. This has consequences for the future conduct of the litigation.
HTBA's notice of motion sought joinder as a party or "[s]uch further or other orders that the Court deems fit". It will be clear from the foregoing that there is an overlap between the submissions HTBA sought to advance if joined as a party, and an application to be heard as an amicus. As a matter of substance, HTBA is entitled to apply to be heard, as an amicus, on issues arising on the application for orders pursuant to s 34(3) which will not be fully addressed by the parties. Further, HTBA has more recently advised that it wishes to make submissions which have not hitherto been made on that issue. If HTBA seeks to make such an application, it should file an amended notice of motion.

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