Awesome Corowa Pty Ltd v Federation Council

Land and Environment Court (NSW)|2022-07-25|Before: Pain J

Solicitors: Mills Oakley (First and Second Applicant) Kell Moore (Respondent) File Number(s): 2020/362961

Judgment on costs

The Respondent the Federation Council has filed a notice of motion dated 26 November 2021 seeking its costs of these Class 1 proceedings. The Applicants' development application (DA) was refused in Awesome Corowa Pty Ltd v Federation Council [2021] NSWLEC 1633 (Awesome Corowa No 1) on 29 October 2021. The DA originally sought consent for subdivision of land into 335 residential lots to be delivered in 13 stages and a Class 1 appeal was commenced in relation to the deemed refusal by the Council. The DA was amended to reduce the number of lots in the course of the proceedings. The land the subject of the DA is known as 169-199 Redlands Road and 42-80 Cemetery Road Corowa.

Land and Environment Court Rules 2007 (NSW)

The Land and Environment Court Rules 2007 (NSW), r 3.7(2), (3) state: Part 3 Proceedings in Class 1, 2 or 3 of the Court's jurisdiction … 3.7 Costs in certain proceedings … (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: … (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, … (d) that a party has acted unreasonably in the conduct of the proceedings, …
Rule 3.7(2), to the effect that a costs order will be made only if fair and reasonable to do so, reflects the principle of "no discouragement" applied to Class 1 proceedings: Port Stephens Council v Sansom (2007) 156 LGERA 125; [2007] NSWCA 299 (Sansom). The Council relies on r 3.7(3)(b) and (d) in seeking a costs order.
An order was made on 18 August 2021 for the payment of costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) which is not sought to be disturbed.

Corowa Local Environment Plan 2012 (NSW)

Clauses 7.4(3) and (4) of the Corowa Local Environment Plan 2012 (NSW) (CLEP) state: Part 7 Additional local provisions … 7.4 Terrestrial biodiversity … (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider - (a) whether the development is likely to have - (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) any adverse impact on the habitat elements providing connectivity on the land, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
Clause 7.9 of the CLEP states: 7.9 Essential services Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required - (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable road access.

Statement of Facts and Contentions dated 2 March 2021

The Statement of Facts and Contentions dated 2 March 2021 (SOFAC) included the following contentions inter alia: 2. Adequate arrangements for provision of essential services have not been made 2.1 Development consent cannot be granted as the consent authority cannot be satisfied that water, electricity, sewage, and road access are available or that adequate arrangements have been made to make them available pursuant to clause 7.9 of the LEP. a. The email from the Council to Mr Matthew Sammon dated 23 June 2020 and annexed to the class 1 application is not sufficient to discharge the obligations under clause 7.9 of the LEP. b. The applicant must demonstrate where the proposed service pipes will be located and any environmental impacts of those works. c. The applicant must provide evidence of an agreement with the servicing authority to upgrade the sewerage pump station and the required new trunk main for water. 3. Insufficient environmental impact assessment 3.1 Development consent cannot be granted as, in the absence of a survey of vegetation in the road reserve, the consent authority could not reasonably form the opinion that the proposed development is not likely to significantly affect threatened species or ecological communities or their habitats pursuant to Part 7 of the Biodiversity Conservation Act 2016. a. The proposed development will include works within the road reserve to provide access and services to the development. b. The application does not identify the species of vegetation within the road reserve and whether they are part of NSW and/or Commonwealth listed threatened ecological communities. c. No assessment has been made of the impact of the development of vegetation within the road reserve. 3.2 Plans 'Services Sheets 1a and 1b' prepared by North East Survey Design nominates that trees in or adjacent to the road reserve will be retained 'subject to further investigation'. The consent authority must consider the impact of the development on those trees pursuant to s 4.15(1)(b) of the EPA Act prior to the issue of any development consent. There is insufficient information in the DA to permit such an assessment. … B3 - Insufficient information Insufficient information has been provided in the applicant's proposal. The applicant was advised in writing on 11 November 2020 of additional information required to enable further assessment of the proposal. No response was received. In addition to that request, the information identified in the contentions above and the following information is required to adequately assess the proposal: … 1. Test of Significance Report under s 7.3 of the BC Act, prepared in accordance with the Minister for Planning Guidelines, assessing the remnant vegetation along Cemetery Road and Redland Road. …

Amended SOFAC dated 27 August 2021

Contention 2 in the Amended SOFAC dated 27 August was identical to that contained in the SOFAC.
Contention 3 was largely identical and contained the following additional paragraph 3.3: 3.3 Infrastructure upgrades to water and sewer and roadworks are required for this development. These works include works offsite. The consent authority must consider the impacts arising from these works - fundamental to the application prior to the issue of any development consent. There is insufficient information to undertake an assessment.
Contention 4 was added as follows: Inadequate assessment of impact on Sloane's Froglet 4.1 The proposed development has not properly assessed the impact on the Sloane's Froglet. a. The Sloane's froglet is listed as vulnerable under the NSW Biodiversity Conservation Act 2016 and endangered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Federation Shire is identified as one of four priority management sites for the species in NSW. b. The southern parcel of the site is within 400 metres of a significant Sloane froglet wetland with a high number of frogs and excellent habitat. c. Surveys for the species were undertaken on 3 February 2020 and 15 April 2021 which is outside of the period in which the species would be detected as it is a 'winter active frog'. d. The survey effort undertaken is inconsistent with the 'Threatened species survey and assessment guidelines: field survey methods for fauna - Amphibians' published by the Department of Environment and Climate Change. e. No assessment has been undertaken of the works to, Cemetery Road, drainage channels and proposed stormwater management on the movement patterns and potential breeding sites of the Sloane's Froglet. f. Hydrological modelling is required to assess the impact of stormwater runoff to ensure that run-off is maintained and there is no impact on habitat. There should also be a demonstration that there will be no post development impact on runoff to the wetland on the corner of Nixon Street and Cemetery Road. This existing wetland is very important for the ongoing viability of the population of Sloane's Froglet in Corowa [sic] g. In the absence of an assessment during the winter months the Court could not form the requisite opinion under Part 7 of the Biodiversity Conservation Act 2016 that the proposed development will not be likely to significantly affect the threatened species of the Sloane's Froglet or its habitat.
Contention B3 contained a different subpoint one in relation to additional information required, as follows: … 1. Test of Significance Report under s7.3 of the Biodiversity Conservation Act 2016, prepared in accordance with the Minister for Planning Guidelines, assessing the remnant vegetation along Cemetery Road and Redland Road and the Sloane's froglet.

Council's evidence

The Council's evidence on the motion consisted of the following: 1. Affidavit of Mr Travis Johnson solicitor for the Council dated 26 November 2021; 2. Amended affidavit of Mr Johnson dated 22 July 2022; 3. Development consent concept plans tendered as Ex A in the substantive proceedings (Ex A); 4. A 21 page document including photographs of unknown provenance and date showing the proposed development site and its surrounds (not referred to) (Ex B); and 5. An amended chronology provided during the course of the hearing (Ex C).

Mr Johnson

Mr Johnson's lengthy affidavit dated 22 July 2022 traversed the history of the DA, communications between the Applicants' representatives and the Council, the history of the proceedings and relevant court documents. It attached a large number of documents. Awesome Corowa No 1 was attached. The affidavit was referred to for the purpose of reviewing that judgment and supports the agreed chronology.

Applicants' (Respondents on motion) evidence

The Applicants' evidence on the motion consisted of the following: 1. Affidavit of Mr Andrew Mott previously director of North East Survey Design, which prepared the DA and made representations to the Council on the Applicants' behalf, dated 4 May 2022; 2. Affidavit of Mr Nicholas Ridoubt solicitor for the Applicants dated 6 May 2022; 3. Affidavit of Mr Mathew Sammon, Director of North East Survey Design, dated 4 May 2022; 4. Exhibit AM-1 to Mr Mott's affidavit dated 4 May 2022 (Ex 1); 5. Exhibit NR-1 to Mr Ridoubt's affidavit dated 6 May 2022 (Ex 2); 6. The joint expert report of the ecologists (JER) dated 17 September 2021 in the substantive proceedings (Ex 3); and 7. The agreed chronology before it was amended during the course of the hearing (Ex 4).

Mr Sammon

Mr Sammon prepared a Draft Concept Plan to send to the Council for the proposed development. This was sent by Mr Mott on 6 November 2019. Mr Sammon and Mr Mott attended a meeting with the council officers on 21 November 2019. Mr Scott Donders and Ms Susan Appleyard were present. Ms Appleyard expressed the view that the Council's main concern was the size of the proposed lots and queried whether they were of an appropriate size for the locality. Mr Donders requested a demand analysis for sewer and water to be provided by the proponent and details on staging for the development. The application would need to include a flora and fauna report (Test of Significance). Mr Sammon asked the Council to provide information relating to the capacity of existing infrastructure required to service the proposed development in due course to assist him in responding to the Council's concerns raised during the meeting.
On 2 June 2020 Mr Sammon telephoned the Council and spoke with Mr Donders and Mr Ben Falconer on speaker phone. They discussed the content of an email from Ms Appleyard on 27 May 2020 which contained a list of 17 items about which additional information was requested. Mr Sammon said words to the effect that it was impossible to do as requested by the Council without the Council providing him with all existing asset data for their whole water/sewerage network to enable an assessment of capacity in their system. The Council agreed and stated that Mr Sammon only needed to provide information on expected flows and demands for the proposed development.
On 5 June 2020 Mr Sammon received an email from Mr Donders stating that the existing sewer pump station only has capacity for an additional 67 lots and provided Mr Sammon with 'as-constructed' drawings of the existing sewer mains. On 16 June 2020 he emailed Mr Donders with a request for more information in relation to the existing sewer pump station. The information requested was not provided by the Council.
On 23 June 2020 he received an email from Mr Donders advising that the Council had undertaken a preliminary assessment of the water and sewer requirements and lot layouts. The email indicated that the Council would upgrade the trunk infrastructure to service the development and the Applicants would be required to provide estimated timelines as to when each stage is likely to be completed so that the Council could plan and budget for the works. The email stated that the sewerage pump station would be upgraded by the Council and that once again the Council would require an estimated timeline as to when each stage is likely to be completed to budget and schedule the works.

Mr Mott

Included within Ex 1 were a number of documents referred to by the parties in argument, including: 1. An email of 27 May 2020 from Susan Appleyard of Council to Mr Mott and Mr Donders inter alia providing 17 comments on the development proposal. 2. An email of 23 June 2020 from Mr Donders to Mr Sammon and Mr Mott inter alia summarised above in [18]. 3. Mr Mott's response dated 26 June 2020 to Ms Appleyard's email of 27 May 2020 and her 17 comments. Mr Mott's response to comment 10 of Ms Appleyard's email, which contended that the ecological assessment of the Sloane's Froglet was poor, argued that the assessment was not poor but rather extremely responsive and responsible proactive ecological assessment and analysis. 4. An email of 11 November 2020 from Ms Appleyard to Mr Mott and Mr Donders inter alia attaching a letter requesting additional information. The letter included the question under the heading Corowa Local Environmental Plan 2012: …How will the development link to services and what is the capacity of those services to meet the needs of the likely increase in population. Clause 7.9 Essential Services. Included within the email were four attachments, including a letter from the Department of Planning, Industry and Environment (DPIE) dated 15 October 2020. The letter was a response to a referral from the Council to DPIE for comment on the proposal. The letter stated that the DPIE concurred that the proposal is not likely to cause significant harm to threatened species. The Proposal was considered to have no likely impact on the Sloane's Froglet and to have potential to create new habitat for the Sloane's Froglet. The DPIE offered to assist in the design and implementation of the storm water disposal system to maximise that opportunity. The letter reminded Council of its duty to assess all roadside vegetation that may be impacted as that had not been assessed by the Applicants. 1. An email from Mr Mott to Ms Appleyard dated 15 February 2021 stating that the Applicants had decided to proceed to appeal and had opted not to provide any additional information in respect of Ms Appleyard's letter of 11 February 2021 which also requested information additional to the letter of 11 November 2020. 2. Minutes of a Council meeting of 3 June 2021 in which Mr Sammon, Mr Mott, Ms Appleyard, Mr Donders and others were present and concerns were raised with respect to water infrastructure, sewer infrastructure and timing of works inter alia. 3. A letter of offer for a Voluntary Planning Agreement (VPA) under s 7.4 of the EPA Act sent by Mr Mott to Ms Appleyard dated 26 August 2021. The Applicants offered to pay for water and sewer infrastructure to service the proposed development and to make a monetary contribution to Council to enable Council to upgrade the Corowa sewerage treatment plant facility to the required storage capacity to facilitate the development.

Mr Ridoubt

Included within Ex 2 were a number of documents filed in this Court such as the original and amended SOFAC and SOFAC in Reply. Further documents were referred to by the parties in argument: 1. A letter dated 19 April 2021 from the Applicants' solicitors to the Council referring to contention 2 of Council's amended SOFAC dated 2 March 2021 (see above in [7]). The letter requested that the Council provide further details regarding the availability of and capacity to provide sufficient water, electricity, and sewerage services for the proposed development. The letter formally requested documentation falling within a number of specific categories. It noted that some of this information had been previously requested by Mr Sammon, including in an email of 16 June 2020. The letter specifically requested information sought in that email. 2. A letter from the Council's solicitors dated 21 April 2021 responding to the Applicants' letter dated 19 April 2021. It stated that the Council was urgently assessing the request and compiling information to provide to the Applicants. It anticipated the majority of information would be available within a week. It stated that most of the information sought had already been provided. 3. An email sent by Mr Marcus Wright employee of the Biodiversity and Conservation division of the DPIE to Ms Appleyard on 10 June 2021 containing feedback prepared by the DPIE in respect of three reports prepared by the Applicants and provided to the Council, including two versions of the Test of Significance report. Mr Wright stated that Version 1 of the Test of Significance report does not provide evidence that ancillary works will cause no significant harm to threatened species or their habitats. It further stated that the DPIE considers the anticipated stormwater disposal system to have considerable potential to be habitat for the Sloane's Froglet and that the vegetation along Cemetery Road has the potential to form part of a critically endangered ecological community under both NSW and Commonwealth legislation. DPIE therefore recommended that before consenting, all services and ancillary infrastructure required should be identified and assessed. The letter also stated that the Test of Significance version 2 did not provide evidence that the Sloane's Froglet will not be harmed by the ancillary stormwater works along the southern boundary and DPIE anticipated that the works were likely to cause such harm. 4. An email sent by the Applicants' solicitors to the Council's solicitors dated 15 June 2021 responding to the email from DPIE summarised above in [20(3)] seeking clarification from Mr Johnson as to the Council's position. Specifically it sought clarification of whether matters raised with respect to the revised Test of Significance report could be conditioned. Mr Ridoubt deposed that no response was received. 5. A letter from Mr Johnson dated 15 September 2021 responding to the letter dated 26 August 2021 attaching the Applicants' VPA (see above in [19(7)]). The letter asked the Applicants to confirm that they rely upon this letter for the purposes of the proceedings in this Court. It also stated the Council's view that since the Council would need to consider the offer at its next meeting, which was scheduled for one week after the hearing, the timing did not afford the Council a reasonable opportunity to consider the offer. The letter raised 11 further issues with the offer.

Joint expert report on ecology

The JER stated that the experts disagreed about the impacts of the proposal on the Sloane's Froglet and roadside vegetation and whether a Biodiversity Development Assessment Report (BDAR) was required for the Sloane's Froglet or the roadside vegetation.
The experts agreed that the documentation provided in the DA was deficient in several respects.

Agreed chronology

The parties agreed the following chronology which reflects the affidavit evidence filed so that it is unnecessary to summarise much of that: ITEM DATE EVENT 21 November 2019 Meeting was held between Federation Council (Council) and North East Survey Design (NESD) on behalf of the Applicant to discuss preliminary plans for the subject site. 1 May 2020 Development application lodged by NESD with Council as part of a pre-lodgement assessment (Preliminary Documents) for 335 lot sub-division. 27 May 2020 Council sent email to NESD providing comments on Preliminary Documents. (Annexure A in Affidavit of Travis Johnson dated 26 November 2021). 5 - 23 June 2020 Scott Donders from Council advises Matt Sammon of NESD in relation to capacity of essential services infrastructure for the proposed development, and upgrades required to be made. Email from Andrew Mott to Council - points 11 and 13 - applicant says that assessments and upgrades to trunk water and sewer assets external to site are Council's responsibility and not the applicants. 26 June 2020 (Tab 15, EXH 1) cl. 7.9 27 July 2020 Email sent from Council to NESD regarding the Preliminary Documents. (Annexure B to Affidavit of TJ dated 26.11.21) The development application was lodged with Council by NESD for 335 lot subdivision 5 August 2020 (DA form lodged by NESD - Annexure C to Affidavit of TJ dated 26.11.21). Applicant's reply to pre-lodgement assessment report from Council provided to Council on this date (Annexure D to Affidavit of TJ dated 26.11.21). 5 August 2020 Updated Capital Investment Value form, prepared by NESD and provided to Council via email. 9 September 2020 - 7 October 2020 Council advertised DA and received 121 submissions in relation to the proposal during this period. 12 October 2020 Council provided the submissions to the applicant and requested a meeting, although one was never held. 15 October 2020 Letter from Biodiversity and Conservation Division of Department of Planning Industry and Environment (DPIE) to Susan Appleyard of Council regarding threatened species, noting that DPIE considers "the proposal to have potential to create new habitat for Sloane's Froglet (Crinia sloanei). BCD can assist in the design and implementation of the storm water disposal system to maximise that opportunity". 11 November 2020 Council send letter to NESD regarding Council's request for information (Annexure E to Affidavit of TJ dated 26.11.21); 22 December 2020 Class 1 application filed First directions hearing: 1 February 2021 Council ordered to file its SOFC by 26 February 2021; Applicants to file theirs by 19 March 2021; Matter listed for Online Court on 5 February 2021. 5 February 2021 Short minutes of order made by the Court. 11 February 2021 Council letter to NESD regarding Council's request for further information (Annexure F to Affidavit of TJ dated 26.11.21). 15 February 2021 NESD responds to Council letter of 11 February 2021 indicating the Applicants were exercising their right to appeal the deemed refusal to the DA. (Annexure G to Affidavit of TJ dated 26.11.21). 2 March 2021 Statement of facts and contentions (SOFC) filed by Council. (Annexure H to Affidavit of TJ dated 26.11.21). 19 April 2021 Statement of facts and contentions in reply (SOFC in Reply) filed by applicant. (Annexure I to Affidavit of TJ dated 26.11.21). 19 April 2021 Mills Oakley (MO) send letter to Kell Moore (KM) requesting additional information from Council regarding necessary essential services infrastructure. (Annexure J to Affidavit of TJ dated 26.11.21). 21 April 2021 KM sends letter to MO in response to its letter dated 21 April 2021 - noting additional information the applicant stated its intention to provide in its SOFC in Reply and requesting information to be provided to Council by midday on 30 April 2021. (Annexure K to Affidavit of TJ dated 26.11.21). 23 April 2021 KM sends additional letter to MO further to its letter sent 2 days prior. (Annexure L to Affidavit of TJ dated 26.11.21). 3 May 2021 Applicant provides Council with 'without prejudice' material for purposes of discussion at s 34 conference. 4 May 2021 (not 3 May as noted in Affidavit of TJ dated 26.11.21) Section 34 conciliation conference takes place by way of Microsoft Teams and is presided over by Senior Commissioner Dixon. Matter is adjourned to 4:15pm on 19 May 2021. 6 May 2021 Council provides applicant with table of estimated costings, additional reports regarding necessary essential services infrastructure. 12 May 2021 Updated ecological assessment, prepared by Hamilton and provided to Council. 19 May 2021 Applicant provided amended plans, estimated costings of works in response to Council costings previously provided, other additional materials to Council for purposes of adjourned s 34 conference. 20 May 2021 LEC requests re-scheduling of s 34 conference from 21 May; new proposed date is 26 May 2021 at 4:15pm. 26 May 2021 Section 34 adjourned to Online Court on 16 June 2021. 26 May 2021 KM (without prejudice) email sent to MO providing feedback in relation to additional information provided to Council in the course of s 34 process. 27 May 2021 KM (without prejudice) letter sent to MO regarding costs and provision of essential services and seeks confirmation from applicant that it "is willing to cover the costs (by way of work in kind) of the infrastructure that is required to service the development…" 31 May 2021 Applicant provides response to Council to letter dated 27 May 2021. 1 June 2021 Email from Council to applicant in response to email of 31 May 2021. 3 June 2021 Meeting takes place regarding necessary infrastructure between parties' experts. 10 June 2021 Feedback provided by DPIE regarding updated ecology report. Provided to applicant by Council. 10 June 2021 'Without prejudice' discussion takes place between parties, including lawyers regarding urban design and lot layout. 15 June 2021 Email from KM to MO regarding instructions to request s 34 be terminated. Response provided by email from MO noting 'similar instructions' primarily in response to the fact the 'urban design issues discussed last Thursday appear to be insurmountable'. 16 June 2021 Order made to terminate s 34 conference. Second directions hearing. Parties agree to proposed short minutes of order; 22 June 2021 ● hearing fixed for 20 to 22 September 2021; ● applicant to file notice of motion to amend development application by 30 July 2021; ● parties to file short minutes of order by midday on 25 June 2021. 22 June 2021 Online Court message submitted to Registrar by KM regarding insufficient time to prepare for hearing based on timetable made at second directions hearing and preference for amended timetable to provide for listing of hearing on 26 to 29 October 2021 instead. Applicant submits Online Court message at 4:53pm in response to respondent's message and does so in support of it. 23 June 2021 Acting Assistant Registrar Gerritsen declines to change earlier orders. 25 June 2021 Proposed short minutes of order made maintaining September hearing dates. (Annexure M to Affidavit of TJ dated 26.11.21) 2 July 2021 Email from KM to MO regarding intention to file notice of motion (including affidavit) seeking vacation of hearing dates and relisting for 26 to 29 October 2021 due to unavailability of Council's Counsel. 6 July 2021 Email from MO to KM consenting to Council's Motion to change of hearing dates. 8 July 2021 Notice of Motion to vary hearing dates heard before Darke J (as Duty Judge). Council's motion dismissed. 29 July 2021 Online Court request submitted. Applicant seeks extension of time to file its Notice of Motion from 30 July 2021 to 13 August 2021. Respondent neither consents, nor opposes. Matter listed for further directions on 2 August 2021 to hear party's submissions. 30 July 2021 Greater Sydney, including the Central Coast, Blue Mountains, Wollongong and Shellharbour enters lockdown. 2 August 2021 Court grants Applicant extension of time to file motion to amend by 11 August 2021. 11 August 2021 Applicant filed Notice of Motion to amend development application. Affidavit of Nicholas Ridoubt and Exhibit NR-1 filed and served. 18 August 2021 Affidavit of Travis Johnson filed prior to hearing of notice of motion objecting to motion to amend as it had not yet been able to obtain advice regarding it by an ecologist. Applicant requests motion be stood over to 20 August 2021 following which it could then provide an amended Statement of Facts and Contentions by 27 August 2021 and joint expert reports to be filed by 13 September 2021. Notice of Motion to amend heard before Registrar: 18 August 2021 ● leave to rely on amended application granted. ● Applicant to pay Council's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. 20 August 2021 Registrar (with consent of both parties) made directions for the timetable for hearing. 26 August 2021 VPA letter of offer sent from MO to KM. (Annexure O to Affidavit of TJ dated 26.11.21) 27 August 2021 Amended SOFC filed and served by Council. (Annexure N to Affidavit of TJ dated 26.11.21) 31 August 2021 Orders made by Court with respect to experts to give evidence at hearing. 8 September 2021 Parties upload agreed short minutes of order, and Schedule F Hearing Information Sheet with Online Court to request changes to the parties' experts to permit the Applicant to call evidence from Corey Mead (fauna) and John Travers (flora) and to match the qualifications the Council similarly sought leave to appoint David Robertson (flora) in addition to Alexandra Knight (fauna). Ecology joint report directed to be filed by 15 September 2021. 8-11 September 2021 Applicant's ecological expert, Corey Mead visits subject site and conducts survey over 3 nights to ensure proper survey done with regards to detecting presence of Sloane's Froglet on-site, including in southern channel. 10 September 2021 Court amends timetable for social planning Joint expert report to be filed by 15 September 2021. 11 September 2021 Federation Council LGA lockdown ends; Central Coast LGA (where Applicant's ecological experts reside) remains in lockdown. 13 September 2021 Council provides bundle of documents, and list of objectors to applicant. Council provides (amended) letter in response to Applicant's VPA letter of 26 August 2021 15 September 2021 (Annexure P to Affidavit of TJ dated 26.11.21). Council provides draft without prejudice conditions of development consent. 17 September 2021 Applicants' respond to Council's letter regarding VPA (Annexure Q to Affidavit of TJ dated 26.11.21) 17 September 2021 Ecology joint expert report provided to Court (though not filed by through Online Court, due to size) 18-19 September 2021 Applicant's ecological experts John Travers and Corey Mead visit the site. 20-22 September 2021 Hearing via Microsoft Teams. 11 October 2021 Restrictions lifted in Central Coast. 21 September 2021 Supplementary traffic joint expert report filed with Court. 27 September 2021 Council meeting to consider VPA offer. (Annexure R to Affidavit of TJ dated 26.11.21). 29 September 2021 Applicant's proposed without prejudice conditions of development consent in reply filed with the Court. 29 October 2021 Appeal dismissed. 26 November 2021 Council's Notice of Motion seeking costs and affidavit of T Johnson filed and served.

Acting Commissioner's judgment

In Awesome Corowa No 1 the Acting Commissioner stated at [1]-[3]: 1 Development Application DA 2020-162 was lodged with Federation Council on 19 August 2020 seeking consent for subdivision of land into 335 residential lots to be delivered in 13 stages. That application was formally amended by lodgement on the NSW Planning Portal on 27 August 2021. The application now proposes subdivision of the land into 306 residential lots, two drainage reserves and three public reserves, removal of vegetation and demolition of existing buildings. 2 On 26 August 2021, a letter of offer to enter into a Voluntary Planning Agreement (VPA) was sent to the Council. At the conclusion of the hearing, that offer had not been formally considered by the Council due to the short period of time available and the Council's meeting schedule. It was due to be considered on 28 September 2021 and it was agreed between the parties that the outcome of the Council's deliberations would be provided to the Court. This matter is discussed later in the judgment. 3 The Council had not determined the application within the prescribed period and the applicants are appealing its deemed refusal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The following topics were identified and discussed by the Acting Commissioner: 1. The site and the locality; 2. The proposal; 3. The further amended concept plan; 4. The Voluntary Planning Agreement; 5. Planning controls; 6. The contentions; 7. The evidence; 8. Social planning; 9. Traffic; 10. Ecology; 11. Planning and Engineering; and 12. The draft conditions;
The Acting Commissioner's findings begin at [170] and proceed until [184]. The Acting Commissioner stated: Conclusions and findings 170 Having regard to the evidence and the submissions made on behalf of the parties, I am not satisfied that the development should be approved. Of particular relevance is the submission made for the Council that the application contains insufficient information for the Court to be satisfied that there will be no adverse impacts arising from the development, particularly in relation to endangered ecological communities. 171 Ms Reid described the hearing as an expensive section 34 conciliation conference. I tend to agree. The application was originally lodged with the Council over 12 months ago and, in preparing the Statement of Facts and Contentions, the Council highlighted the areas which it said there were deficiencies in detail, surveying and investigation. At that time, the issue of the Sloane's Froglet habitat had not been identified, however, it is apparent that the necessary investigations have still not been completed and I am not satisfied from the information provided that there will be no adverse impacts to either the remnant vegetation along Cemetery Road and the Sloane's Froglet. 172 For that reason, I cannot be satisfied that the matters raised in cl 7.4 of the LEP have been satisfactorily address or that the development will not have any adverse impact on the significance of the Sloane's Froglet or on the habitat elements providing connectivity on the land. It has not been demonstrated that appropriate measures can be adopted to minimise or mitigate the impacts of the development. It is unclear whether the works that have been carried out in Albury would be an appropriate means of mitigating adverse impacts to the Froglet. It has not been demonstrated how the vegetation will protected or if it will be removed. 173 The Sloane's Froglet is listed as vulnerable on the NSW Biodiversity Conservation Act 2016 and endangered under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and accordingly, a higher level of consideration and assessment of the impacts is required. There is no adequate information or a clear pathway that has been prepared that will ensure the development will not have an adverse impact on the species. 174 I cannot accept Mr Hemming's proposition that works along Cemetery Road will be the subject of a future application. The works are integral to the application, are shown on the plans that form part of the application and are recognised by the experts as being necessary for the development to occur. 175 In addition, I am not satisfied, in the absence of the VPA or detailed investigation and evidence, that the works required to service the development will be carried out in a manner that does not have any adverse impacts. It is not appropriate to defer consideration of such matters to a later date when the works are required as an integral part of the development. Similarly, the application as lodged on the Planning Portal and before the Court proposes works in Cemetery Road and, according to the agreed position of the experts, those works are required and have a direct nexus to the development. Accordingly, I am not satisfied that the application will not adversely impact the natural and built environment. …

Council's submissions

Rule 3.7 permits costs orders in development appeals where fair and reasonable to do so, an approach based on the 'no discouragement' principle: Sansom. It is appropriate to approach the assessment of r 3.7 by, firstly, identifying whether there is anything within the judgment which indicates that an order for costs may be fair and reasonable. Secondly, by considering the parties' conduct before and during the hearing for any indication that such an order may be appropriate: Marks v Perham (No 2) [2020] NSWLEC 84 at [30].
The Council summarised aspects of the Acting Commissioner's judgment at pars 16-24 of its written submissions. The Council contended it is fair and reasonable to order costs on two bases: 1. Firstly, in accordance with r 3.7(3)(b), the Applicants failed to provide information and documents required by law, or that were necessary to enable the Respondent to gain a proper understanding of, and give proper consideration to, the application; 2. Secondly, in accordance with r 3.7(3)(d), the Applicants acted unreasonably in the conduct of the proceedings.
The bases are interrelated and concern how the Applicant put their case. The Applicant sought consent for subdivision development in 13 stages. One issue noted by the Acting Commissioner was the impact of works in Cemetery Road, the neighbouring public road, being digging for water, sewer and electricity services and whether this required trees in the road reserve to be removed. The Acting Commissioner had to assess these works as fundamental to the application, because of the principle established in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 (Hoxton Park). This is what the Acting Commissioner did: judgment at [174]. The Applicant maintained that the DA did not relate to works offsite.
The history of the matter is detailed in Mr Johnson's affidavit and the following should be noted. The affidavit provides a detailed history of the correspondence exchanged between the Respondent, and the Applicants (or representatives on their behalf). Of particular note, are the following matters: a. Prior to lodgement of the application, the Respondent raised concerns with respect to insufficient information on 27 July 2020. b. The Applicants responded to the matters raised by the Respondent on 5 August 2020, at the same time the application was lodged. The Applicants confirm, in response to point 10, that the assessment undertaken by the Applicants' consultant was "not providing comment on a targeted fauna survey for Sloane's Froglet and is clearly a more generic biodiversity assessment based on a field assessment in February." Assessment of the Sloane's Froglet was a jurisdictional requirement. c. The application was advertised between 9 September 2020 and 7 October 2020. 121 submissions were received, which were provided to the Applicants on 12 October 2020, together with a request to meet with staff of the Respondent. The Applicants did not accept the request to meet. d. The Respondent provided a further response to the Applicants' representative on 11 November 2020. The matters raised in response to the application included matters raised prior to lodgement which had not been adequately addressed by the Applicants. e. No response was received by the Respondent to its letter dated 11 November 2020. f. On 22 December 2020, the Applicants commenced proceedings pursuant to s8.7(1) of the EPA Act against the Respondent's deemed refusal of the application. g. On 11 February 2021, the Respondent sent a letter to the Applicants' representative, enclosing a copy of its letter dated 11 November 2020, and again sought a response to the matters raised. No substantive response to that letter was received to the request and the Applicants instead advised that they would file a deemed refusal appeal and 'opted not to provide any additional information' at that time. h. On 2 March 2021, in accordance with the Court timetable, the Respondent filed its Statement of Facts and Contentions (SOFAC). The contentions raised were consistent with the matters raised in the Respondent's prior communications issued to the Applicants. i. On 19 April 2021, the Applicants filed their Statement of Facts and Contentions in Reply (SOFACiR). There, with respect to Sloane's froglet, the Applicants contended "no development is proposed within the channel zone, and the channel - and the potential habitat for Sloane's Froglet", which was the extent of the Applicants' response in relation to that contention. j. Following the termination of a s34 conciliation conference, on 25 June 2021, the Court listed the matter for hearing on 20, 21 and 22 September 2021. k. Thereafter, the Applicants sought, in breach of the timetable agreed to between the parties, leave to rely on an amended application on 18 August 2021. The Applicants were granted leave and ordered to pay the respondent' costs thrown away pursuant to s8.15(3) of the EPA Act. l. Following advertisement, the Respondent received 198 submissions in response to the amended application. m. On 27 August 2021, the Respondent filed its Amended Statement of Facts and Contentions in response to the amended application (ASOFAC). The amended application did not have the effect of reducing the issues in dispute, rather raising additional contentions as a consequence of the amendments. n. On 26 August 2021, the Applicants wrote to the Respondent making an offer for a VPA. o. The Respondent, via Kell Moore Lawyers, provided a response to the Applicants' letter on 15 September 2021 raising numerous issues VPA, and noting, given its lateness, was not able to be considered by the Respondent prior to the hearing. p. The VPA was nevertheless rejected by resolution passed by the Respondent at its meeting on 28 September 2021.
The Applicant failed to provide information necessary for the Acting Commissioner to be satisfied as is required by cl 7.9 of the CLEP that essential services are available or that adequate arrangements have been made to make them available for the disposal and management of sewage and stormwater for the project. As a result, r 3.7(3)(b)(i) and (ii) apply. An upgrade to the public system was needed. The Council did not have a contributions plan in place and did not have any other proposal to upgrade the services. The only legal mechanism available was a VPA. The Applicants needed to have a proposal for funding by 23 June 2020, and secondly detailed information about how connection should be made to off-site sewer and water systems. The Applicants were on notice that a VPA was needed from 3 May 2021 when the Council advised its position in preparation for the s 34 conference and at the s 34 conference on 26 May 2021. It did not provide one in a timely manner, providing it only 3 and a half weeks prior to the hearing. The form of the offer did not enable the Council to consider the impacts and did not provide for complete funding of the infrastructure works. As the Acting Commissioner noted at [32] the VPA offer lacked certainty and what it provided could not be approved by the Council. The VPA offer lacked a detailed design to assess. It stated that it would not be funded if the project became unfeasible. The VPA offer impermissibly deferred consideration of impacts, including essential services required by cl 7.9 of the CLEP, and shifted the substantial financial burden of works onto the Council. The Council could not accept it and consequently the Applicants acted unreasonably. Subrule (d) also applies.
The Acting Commissioner was bound to refuse the DA because cl 7.9 could not be satisfied. It was not reasonable for the Applicant to rely on the 23 June 2020 email from the Council (see above in [18]). It had to provide further information such as timing of the stages of the proposed subdivision to ensure capacity would be available (only 67 lots could be supported under the existing capacity of the Council's system).
The matters above in [30] demonstrate that the Respondent sought information on several occasions required by law (pertaining to the Sloane's Froglet) necessary to enable it to gain a proper understanding of and give proper consideration to the application under cl 7.4 of the CLEP. The Applicant failed to provide information that was required by law in relation to the Sloane's Froglet. This deficiency in the application was insurmountable, as recognised by the ecologists (see above in [22]). The assessment of whether impacts from the development triggered a BDAR which was absent in the application was a jurisdictional consideration absence of which could not result in approval. While there was no mention of the Sloane's Froglet in the SOFAC of 2 March 2021 the Applicant had an obligation to provide information as this was required in order to comply with cl 7.4(3)(a). No assessment was carried out prior to February 2021 when the issue was raised in correspondence or after the filing of the amended SOFAC.
This is linked to the failure of the Applicant to provide sufficient information about work to be undertaken off-site in the road reserve which work was essential to enable the project to proceed. As held in Hoxton Park, assessment of the likely impact of works not the subject of a DA is required if flowing from the development being undertaken. Whether the Sloane's Froglet would be affected by the works in the road reserve was not addressed.
Consequently the Court could not be satisfied about matters required by cl 7.9 and cl 7.4 which were jurisdictional matters. The Council was forced to run a three day case with a total of 11 experts called in circumstances where the Applicant could never have persuaded the Court to approve the DA.

Applicants' submissions

The no discouragement principle is reflected in r 3.7(2). The Council bears the burden of establishing that a costs order ought to be made and has not done so. Contested matters of merit determined by the Acting Commissioner cannot provide the basis for a costs order under the rule. A conflict in the evidence and submissions alone cannot give rise to a costs order.
Until [170] in the judgment, the Acting Commissioner summarised disputed topics. The Applicants maintained in the appeal that the DA did not relate to offsite works. The Acting Commissioner did not refer to Hoxton Park. The Applicants lost the argument on whether off-site impacts needed to be assessed in relation to this DA. Rule 3.7(3)(b)(ii) does not apply in these circumstances.

VPA

The summary of events relied on by the Council fails to refer to the 23 June 2020 email from Mr Donders of the Council to Mr Sammon (see above in [18]). That letter suggested that the Council would be providing the off-site sewerage and potable water services needed to support the proposed development. That the Applicants did not respond to the 11 November 2020 letter seeking information before commencing proceedings is irrelevant. The Applicants were entitled to commence an appeal under the deemed refusal provisions in the EPA Act. The Council did not utilise the 'stop the clock' provisions available to them if they required further information.
In pre-DA lodgement discussions on 21 November 2019 the Applicants' representatives met with the Council to discuss the capacity of the existing infrastructure (Mr Sammon above in [15]). Further information about the capacity of the Council's system was requested (above in [16], [17]).
By March 2021 the Council had filed a SOFAC. Adequate servicing arrangements remained an issue. Additional information was necessary for the Applicants to be able to properly address the contention. The Applicants' requested more information in the letter dated 19 April 2021 (see above in [20(1)]). The Council responded on 21 April 2021 that they were complying with the request and the information should be available within the week (see above in [20(2)]).
The Applicant was not aware until after the s 34 conference in May-June 2021 that the Council would not be funding the necessary off-site sewerage and other services. It acted promptly in developing a VPA and making an offer on 26 August 2021. Ultimately that was not accepted by the Council. This meant that the Acting Commissioner had to refuse the DA on that basis. The Applicant did not act unreasonably in these circumstances.

Sloane's Froglet

The SOFAC dated 2 March 2021 filed by the Council did not refer to cl 7.4 of the CLEP, did not refer to any requirement for a BDAR and made no mention of Sloane's froglet. The Amended SOFAC filed in August 2021 identified Sloane's Froglet for the first time.
In May 2020 the Applicants were engaged in pre-DA discussions with the Council. On 27 May 2020 the Council provided comments in relation to the Sloane Froglet stating "10. Ecological assessment for Sloane Froglet is poor." A response on 26 June 2020 was provided to that assertion (see above in [19(3)]). After that, the materials in support of the DA were sent off to referral bodies. That included the DPIE. The Department's referral response dated 15 October 2020 is summarised above in [19(4)]).
On 11 June 2021 the Applicants were provided with a copy of an email from the Department dated 10 June 2021 (see above in [20(3)]). In relation to the Sloane's Froglet it refers back to the original response dated 15 October 2020. Then, having regard to the further materials provided the Department states: "we reiterate that if approval is granted, specific conditions of consent should promote Sloane's Froglet habitat consistent with the Sloane's Froglet Stormwater Wetland Design Guidelines…BCD threatened species officers can support Council in the design and implementation of those works."
Having received a copy of that response from the Department, the Applicants sought clarification as to whether the matters raised were capable of being conditioned (see above in [20(4)]) and no response was ever received.
The Council appears to submit that the document required by law within r 3.7(3)(b) is a BDAR. Whether a BDAR was required was a hotly contested issue in the expert evidence, as can be seen from the JER (Ex 3). Even if the Acting Commissioner found that a BDAR was required (and no finding was made to that effect), that would merely mean the Applicants were unsuccessful on that ground. That cannot overcome the presumptive rule.
There is no basis for a submission that there was no assessment of the impact on the Sloane's Froglet. The Applicant lost on the 'merits' (see [170]-[171] of the judgment) that is all.

Remnant roadside vegetation

The Acting Commissioner's conclusion at [170] refers to the remnant trees in the road reserve. Again, there was a significant, unresolved, dispute between the ecologists. The experts agreed that if any of those trees did need to be removed, that would not be an impediment to the carrying out of the development. Rather, it would require "credits to be retired": judgment at [102].

Consideration

As identified by the parties I must determine if the presumptive rule in r 3.7(2) should be set aside and a costs order made. The Council bears the onus of establishing a case to do so. Circumstances in which this may occur are identified in subrule (3) and the Council relies on paragraphs (b) and (d). The focus of the Council's case was the alleged failure of the Applicants to provide information which was said to be jurisdictional in order to enable satisfaction of the consent authority under cll 7.4 and 7.9 of the CLEP.
The Acting Commissioner's judgment is lengthy and summarises issues and evidence up to [169]. The consideration at [170] commences with a finding that the DA should not be approved. Her findings at [171]-[174] were that she could not be satisfied of matters in cl 7.4 of the CLEP in relation to the Sloane's Froglet or that necessary work off-site can be dealt with separately. At [175] the Acting Commissioner considered that the lack of a VPA approved by the Council or detailed investigation and evidence meant that she could not be satisfied that necessary works will not have an impact on the natural and built environment. While the Council referred to the judgment extensively its grounds were limited and do not require a lengthy consideration of the judgment beyond what is extracted above in [24]-[26].
The lengthy chronology agreed by the parties set out above in [23] identifies correspondence between the parties before proceedings were commenced including pre-DA discussions and during the proceedings and the principal steps taken in the proceedings.

VPA

The history of the Council's consideration of how sewerage and potable water services in the Council's systems off-site would be able to or provided to support the development proposed was in evidence and is reflected in the chronology. The 23 June 2020 email from Mr Donders to the Applicants' representative on its face suggested that the Council would be providing sewerage and water facilities to support the proposed development. Previously the Applicants' representatives asked for details of the Council's systems, summarised above in Mr Sammon's evidence above in [16]-[17] and Mr Ridoubt's evidence above in [20(1)]-[20(2)]. Such details were not forthcoming before the appeal was commenced. The Applicants discovered in the course of the s 34 conciliation process in May-June 2021 that the Council would not be providing such services, with the consequence that a VPA was the only legal mechanism to provide such services in the absence of a contribution plan. The Applicants provided a VPA in August 2021 which was ultimately not acceptable to the Council. The Applicants did not unacceptably delay in the provision of the VPA. The rejection of the VPA meant the Acting Commissioner was bound to refuse the DA because cl 7.9 of the CLEP could not be satisfied, as she stated in relation to this issue at [181]-[182]. These circumstances do not give rise to any apparent failure on the Applicants' part to provide information in a way which would attract the application of r 3.7(3)(b)(i), (ii), or (d) in the context of cl 7.9 of the CLEP.

Sloane's Froglet

The history of consideration of the Sloane's Froglet does not suggest that the Applicants failed to provide information that was required by law to be provided or that was necessary to enable a consent authority to gain a proper understanding of the application as necessary for cl 7.4 of the CLEP (r 3.7(3)(b)). The Council asserted that evidence addressing whether a BDAR was required and information relevant to cl 7.4 of the CLEP was not provided by the Applicant. As the Applicant identified, the SOFAC did not refer to cl 7.4 of the CLEP or a BDAR, nor did the amended SOFAC refer to either. An ecological impact assessment of the Sloane's Froglet was undertaken to support the DA which was criticised for its quality by the Council. Lengthy expert ecologists' reports were prepared for the Class 1 proceedings including in relation to the Sloane's Froglet. The SOFAC made general statements about what information was missing. The amended SOFAC which followed the s 34 conference in May-June 2021 referred to the Sloane's Froglet for the first time. The parties' ecologists did not agree about a number of matters. The Acting Commissioner held that on the evidence provided she was not satisfied of necessary matters in cl 7.4 of the CLEP. The history of how ecological issues were considered before the DA was lodged and during the proceedings does not suggest a failure to provide information required by law for the purposes of r 3.7(3)(b).

Works in the road reserve and roadside vegetation

A related complaint to the Sloane's Froglet was the absence of information about the likely impact of works which would have to be carried out off-site in the road reserve possibly affecting remnant native vegetation. The Applicants maintained throughout the appeal that the DA did not apply to any off-site works in Cemetery Road or elsewhere. The Acting Commissioner did not accept that argument at [174], another reason for refusal of the DA. That is another issue on which the parties disagreed and about which the Applicant was unsuccessful on the merits. No basis arises under r 3.7(3)(b) or (d) to award costs in these circumstances.

Conclusion

In summary, no circumstance which would attract r 3.7(3)(b) or (d) has been identified. Rule 3.7(3) does not set out an exhaustive list of circumstances relevant to the "fair and reasonable test" where the making of a costs order might be appropriate. No other circumstances arise to overcome the presumptive rule.
I agree with the Applicants' overall characterisation that what occurred before the Acting Commissioner was a consideration of merit matters in relation to which the Applicants were unsuccessful. No basis for finding that the presumptive rule has been overcome and a costs order ought to be made in the Council's favour has been demonstrated. The Council is unsuccessful in relation to its notice of motion dated 26 November 2021 seeking costs, which will be dismissed.
The parties agreed that the approach to costs of a costs application in Class 1 proceedings is that costs follow the event. The Applicants having been successful, the Council should pay their costs of the notice of motion.

Orders

The Court orders: 1. The Respondent's notice of motion dated 26 November 2021 is dismissed. 2. The Respondent is to pay the Applicants' costs of the costs application.

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: 03 August 2022

(2007) 156 LGERA 125

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