Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 | Case summary

1 HIS HONOUR: This matter comes before the Court at the application of the respondent, Goulburn Mulwaree Council, who is concerned that there has been a failure by the applicant to comply with the Court's directions made by me on 4 August 2006. On that occasion the matter was also before me for directions on the basis of the inability of the court appointed experts to provide their reports because of the failure of the applicant to provide the information that the court appointed experts had requested. 2 I had asked for the court appointed experts, Dr Martens, Dr Holmes and Mr Cooper, to attend the Court, and they were kind enough to do so, and explain to me in Court the difficulties they were facing arising from the failure of the applicant to provide necessary information. The applicant, therefore, had two explanations of the information it was required to provide. First, there was the explanation provided by each of the court appointed experts in their letters which set out the particular topics and documents which needed to be provided in order for the court appointed experts to perform their task of providing a report on the issues within their area of expertise. Secondly, the oral explanation provided to the Court elaborated on these documents and topics and explained the reasons why such information was essential for the experts to provide their report. As I indicated on the last occasion, an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed. 3 The court appointed experts' requests for information were to enable the court appointed experts to provide expert opinion as to whether the proposed development would be able to be carried out with satisfactory environmental impacts in their respective areas of expertise. The experts had said that the information provided thus far by the applicant was inadequate in order to enable the experts to express an opinion that the proposed development would have satisfactory environmental impacts. 4 Having had that explanation both in writing and orally, I made directions that the applicant provide to the court appointed experts the information that had been requested by the court appointed experts. 5 In the case of Dr Martens, the court appointed expert on waste water issues, I directed that the applicant provide to Dr Martens the information requested by Dr Martens in his preliminary report of 24 July 2006, by 18 August 2006. 6 In the case of Dr Kerry Holmes, the court appointed expert on odour issues, I directed the applicant to instruct its expert, Dr John Jiang of EnviroOdour, to provide to Dr Holmes the meteorological data files and modelling input data files requested by Dr Holmes in her preliminary report of 30 June 2006, by 11 August 2006. 7 In relation to Mr Cooper, the court appointed expert on noise issues, I directed that the applicant to provide any further information which it wishes Mr Cooper to consider by 11 August 2006. 8 I then directed that Dr Martens, Dr Holmes and Mr Cooper provide their respective final reports, based on the additional information which I had directed the applicant to provide to those persons. I also directed that the matter be fixed for hearing. Subsequently the matter was listed for hearing on 18 and 19 October 2006. 9 Although apparently some information might have been provided by the applicant to the respective court appointed experts, that information continued to be inadequate, as the final reports of the court appointed experts reveal. 10 Dr Martins' final report, which was available on 11 September 2006, identified further information that had not been provided by the applicant in relation to waste water management of the manager's residence. This included the ongoing maintenance requirements, risk management measures, sizing of effluent absorption trench to meet AS/NXS1547(2000), plant showing works for location of a septic tank absorption trench, and information to satisfy the neutral or beneficial impact test (NORBI) as required by cl 10 of State Environmental Planning Policy 58 (pursuant to cl 10, a consent authority must have regard to whether the development will have a neutral or beneficial effect on the water quality of river, streams or groundwater in the hydrological catchment). 11 Dr Martins also identified the information that had not been provided by the applicant in relation to waste water management at the vermiculture facility leachate system. This included raw waste water quality, description of the treatment process, documentation as to how leachate would be dispersed, risk management measures where leachate production exceeds the volumes estimated by the applicant, and disposal field size or calculations in this regard, or a disposal field location plan. 12 Dr Martens stated the applicant has not provided adequate information in relation to leachate management measures, including leachate generation rates and quality and capacity recycling, plus an assessment of further leachate treatment and irrigation requirements of excess leachate. In relation to waste water management and the truck wash-off facility, Dr Martens states the applicant has not provided the information in relation to raw waste water quality, description of the treatment process, operation and maintenance, design effluent quality, risk management measures or the NORBI test assessment. Dr Martens states the applicant has not provided information in relation to waste water management for site staff, with regard to future operation and management, risk management measures, location of existing trench or the NORBI test information. 13 In relation to stormwater management for the protein recovery facility, Dr Martens identified that the applicant has failed to provide the information requested by the Sydney Catchment Authority for a stormwater management layout and details in relation to the design of stormwater ponds which will be sufficient for that authority's requirements. 14 In relation to stormwater management of the vermiculture facility, Dr Martens notes that the Sydney Catchment Authority have specified that a detention of 3,000 cubic metres was to be provided but, according to the information provided by the applicant, a storage volume of only 120 to 150 cubic metres is proposed. The plans provided by the applicant do not identify the location of irrigation structures for stormwater. 15 All of this information is, of course, basic to understanding the ability of the proposed development to deal satisfactorily with waste water issues. It was information which was identified by Dr Martens as being needed in the preliminary report and in the oral explanation to the Court on the previous occasion. Whatever information the applicant did provide to Dr Martens, it clearly did not go far enough to address these matters. 16 Mr Cooper, the court appointed expert for acoustic issues, identified in his final report inconsistencies between the applicant's environmental impact statement and the pollution control consultancy and design report, which inconsistencies had not been addressed by the applicant. Furthermore, Mr Cooper identified that the applicant had not provided an adequate noise assessment of the proposed operations having regard to the pollution consultancy and design report and the Environment Protection Authority noise goals. 17 Dr Holmes, the court appointed expert on odour issues, has provided a final report, but does not identify a need for the applicant to provide further information. 18 After the receipt of the court appointed experts' reports, the council's solicitors wrote to Mr Capogreco, the solicitor for the applicant, identifying the fact that Dr Martens in his final report had indicated that further information was required from the applicant and requesting whether the applicant intended to provide Dr Martins with this outstanding information. On 26 September 2006, Mr Capogreco responded by e-mail saying that the applicant's consultant had advised that further information may be provided by 27 September 2006 but Mr Capogreco asked to have until 29 September 2006 to provide the information to Dr Martins. 19 The council naturally is concerned as to firstly, whether such information is to be provided at all and, secondly, what the consequence of providing this information at such at late stage will be for the future conduct and hearing of this matter. 20 Having regard to the directions that I made on 4 August 2006, and the clear statements that I made as to the necessity for the applicant to provide information to the court appointed experts, the applicant should now not be given, without express leave being sought, an opportunity to provide further information to Dr Martens or the other court appointed experts. To allow that to occur would countenance the breach by the applicant of the Court's directions. 21 There can have been no doubt in Mr Capogreco's and hence the applicant's mind as to the necessity for the applicant to properly prepare its case and provide all information that was requested by the court appointed experts. It was made clear to the applicant that a failure to do so could have the consequence that the applicant will be disadvantaged at the hearing because the information it needs to persuade the Court, exercising the functions of the consent authority, would be lacking. It was with that knowledge that the applicant, one must presume, elected not to provide to the court appointed experts all the information that was necessary. The applicant should now be prepared to live with the consequences of that decision. 22 Accordingly, I do not consider that it is appropriate to make any further directions which would permit the applicant to provide any further information to the court appointed experts unless and until express leave is sought from and granted by the Court. To ensure that that occurs, I intend to make some directions which will state that the applicant is not permitted to provide any further information or documents to the respective court appointed experts without leave of the Court, and furthermore that the applicant is not permitted to rely on any evidence of any expert in relation to the issues in respect of which court appointed experts have been appointed without leave of the Court. 23 It is probably not necessary to say that the applicant is not permitted to vacate the hearing because that would require leave in any event. 24 The upshot is that the evidence that will be available for the hearing will be the court appointed experts' reports on waste water, noise and odour. 25 In respect to the first two of those reports the applicants will have to live with the consequence that those reports identify serious deficiencies in the information provided by the applicant, with the consequence that the respective experts are not in a position to say that the proposed development satisfactorily deals with the environmental issues. That may mean that the prospects of success of the applicant's application are not great, but that is a result of the applicant's own making. 26 Accordingly, for these reasons, I make the following directions:

Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

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