Bay Simmer Investments Pty Ltd v State of New South Wales

Land and Environment Court (NSW)|2016-03-09|Before: Pain J, Ms J

SOLICITORS: Clinch Long Letherbarrow (Applicant) Crown Solicitor's Office (First Respondent) File Number(s): 40776 of 2015

Judgment

These Class 4 judicial review proceedings challenge the decision of the Minister for Planning through his delegate to approve the Walsh Bay Arts Precinct concept proposal on 21 May 2015. By Notice of Motion dated 3 December 2015 the Applicant seeks a direction allowing it to adduce expert evidence in relation to potential construction noise impacts of the Walsh Bay Arts Precinct proposal from acoustic expert Dr Tonin. Under r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") such a direction is necessary. The Minister for Planning the Second Respondent has filed a submitting appearance.

Environmental Planning and Assessment Act

Division 2 of Pt 4 of the EPA Act provides: Division 2 The procedures for development that needs consent … 79C Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. …
Division 2A of Pt 4 of the EPA Act provides: Division 2A Special procedures concerning staged development applications 83A Application of this Division This Division applies to staged development applications and to consents granted on the determination of those applications. 83B Staged development applications (1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. (2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application. (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. (4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3). … 83D Status of staged development applications and consents (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application. (2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application.
Division 4.1 of Pt 4 of the EPA Act provides: Division 4.1 State significant development … 89E Consent for State significant development (1) The Minister is to determine a development application in respect of State significant development by: (a) granting consent to the application with such modifications of the proposed development or on such conditions as the Minister may determine, or (b) refusing consent to the application. …

Evidence

The affidavit of Mr Clinch solicitor for the Applicant dated 3 December 2015 annexing a report of Dr Tonin ("Tonin Report") acoustic engineer dated 2 December 2015 was read. Dr Tonin was instructed by the Applicant to provide a draft expert report on the likely noise and vibration impacts of the Walsh Bay Arts Precinct concept proposal on the venue operated by the Applicant and other sensitive noise receivers in the area. In preparing his report Dr Tonin was necessarily required to make assumptions on the basis of his experience and expertise about the future construction works, such as what equipment would be used and which roads would be used for construction traffic. The lack of information available to Dr Tonin meant that his report was limited to a "generic assessment… in order to estimate noise levels." He stated that he was unable to estimate with any certainty the expected vibrations levels from the proposed piling works. Dr Tonin's conclusion on the basis of his assumptions is that "there are likely to be significant noise impacts at the Applicant's premises which require reasonable and feasible means of mitigation."
The Applicant tendered a bundle of documents containing the draft Director-General's Environmental Assessment Requirements as circulated to agencies for comment, the draft Director-General's Environmental Assessment Requirements with tracked changes by Arts NSW, the final Director-General's Environmental Assessment Requirements ("DG EARs") dated 2 September 2013, the Secretary's Environmental Assessment Report dated May 2015 ("Secretary's Report") and the Statement of Reasons dated 4 February 2016. The State Significant Development Application lodged by Arts NSW on 1 July 2014 was also tendered by the Applicant. The First Respondent tendered the Development Consent No SSD 6069 dated 21 May 2015 with the Secretary's Report attached. The draft DG EARs were amended to exclude reference to the assessment of construction noise after submissions to that effect from Arts NSW the proponent for the concept plan.

Development consent No SSD 6069 A1 DEVELOPMENT DESCRIPTION a. Except as amended by this approval, concept approval is granted for the Walsh Bay Arts Precinct, an integrated performing arts and cultural precinct, which includes the following key elements: • a new waterfront public square between Pier 2/3 and Wharfs 4/5; • a series of new stairs and balconies on Pier 2/3 and Wharf 4/5 and modification to the roof of Pier 2/3; • the inclusion of flexible and adaptive spaces in Pier 2/3 and Wharf 4/5 for arts and cultural activities; and • the use of the precinct for arts festivals, events and pop-ups and associated uses, including restaurants, cafes and bars … A3 DETERMINATION OF FUTURE APPLICATIONS (a) In accordance with section 83B(3)(b) of the EP&A Act, future stages of the concept proposal are to be the subject of future development applications. (b) The determination of future applications for development of the Walsh Bay Arts Precinct are to be generally consistent with the terms of this development consent as described in Part A of Schedule 2, and subject to the modifications of the proposed development set out in Part B of Schedule 2, and future conditions in Part C of Schedule 2. … A6 LIMITATIONS OF THIS CONSENT This consent is limited to the approval of the concept for the Walsh Bay Arts Precinct only and does not give consent for any construction works. Such works shall be the subject of separate development applications. …

Secretary's Report

The Executive Summary of the Secretary's Report states: As the current application does not seek approval to undertake any construction works or immediate use of the precinct for events, the Department is satisfied that the environmental, construction and operational issues raised in submissions can be largely addressed through the imposition of future environmental assessment requirements. Such requirements will be required to be addressed at the relevant future development application stage by the relevant consent authority. The Department considers that the success of the proposal is contingent on further detailed design and ongoing consultation with Council and key agencies through the design development phase.
In section 2 of the Secretary's Report headed the "Proposed Development", the report states Despite the detailed level of information provided with the application, no works are proposed at this stage and the application provides a concept proposal only. Should this concept proposal be approved, the works and events outlined would need to be fully detailed and assessed in future development applications.

Grounds of review

The Applicant identified the following grounds of review in its amended summons: 18. In breach of s 79C(1)(b) of the EP&A Act, the second respondent's delegate when deciding to grant consent failed to consider the impact of construction noise and vibration, dust and construction-related traffic impacts likely to be caused by the Proposal on the natural and built environments, and social and economic impacts in the locality. 19. In breach of s 79C(1)(d) of the EP&A Act, the second respondent when deciding to grant consent failed to consider submissions made in accordance with the Act, insofar as they related to the impacts of construction noise and vibration, dust and construction-related traffic impacts likely to be caused by the Proposal. 19A. By reason of the facts and matters pleaded at paragraphs 7-19 above, and his failure to make inquiries about the impact of construction noise and vibration, dust and construction-related traffic impacts likely to be caused by the Proposal, the second respondent constructively failed to exercise his powers in relation to grant of the Consent under s 89E(1) of the EP&A Act. 19B By reason of the facts and matters pleaded paragraphs 7-19 above, the decision by the second respondent not to take into account the impact of construction noise and vibration, dust and construction-related traffic impacts likely to be caused by the Proposal was so unreasonable that no reasonable decision-maker would have made it, because: (a) he was aware that the Environment Protection Authority and at least one objector were concerned about construction-related impacts; (b) if he had made inquiries, he would have received information to indicate that the construction-related impacts were likely to cause the impacts described in para 13 above; (c) if he had made inquiries, he would have received information about reasonable and feasible measures which could have been taken to mitigate construction-related impacts; and (d) those inquiries were not made. 19C By reason of the said breaches, the second respondent's delegate in breach of ss 79C and 89E(1)(a) failed to consider whether to modify the development or impose conditions on the consent to mitigate the said impacts, including whether the businesses adversely affected should be compensated or relocated during the construction period.

Applicant's submissions

All of the impacts must be assessed as part of the concept approval which must include construction noise. Section 79C of the EPA Act applies by virtue of s 83D(1) so that all impacts must be assessed at this stage. Construction noise is a mandatory relevant consideration. The Tonin Report demonstrates that such an assessment at this point of this staged development is possible and material. The reasoning in Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; (2011) 81 NSWLR 638 ("Hoxton Park") applies by analogy. The assessment process should not be bifurcated as has occurred in this case. By approving the concept approval future development applications must be consistent with it, as required by s 83D(2). Consistent with Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348 ("Shellharbour (CA)") The Tonin Report is reasonably required for the just, quick and cheap resolution of issues in dispute. Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 ("Arnold (No 6)") also supports this approach.
In relation to the failure to make inquiries ground, Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 ("Caldera") as applied in Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226 ("Friends of King Edward Park") provides support for reliance on the Tonin Report. The report shows that the Minister's delegate could have asked for construction noise impacts and received such a report. Relevant material is not restricted only to that material before the decision-maker.
In relation to the manifest unreasonableness ground of review, the authorities such as Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 ("Murrumbidgee (CA)") per McClelland J identify that an objective test can be applied which can include expert evidence.
The Tonin Report also identifies that there are environmental consequences for the Applicant which are relevant to demonstrate materiality and to the Court's exercise of discretion under s 25B of the Land and Environment Court Act 1979 (NSW) ("LEC Act") in the event that arises in the future.

Applicant's Notice of Motion dismissed

As I agree with the submissions of the State of NSW I will largely adopt these in my finding. One principal issue underpins all the grounds of review, namely given the nature of the approved staged development application was the Minister's delegate under an obligation to make an assessment of noise and vibration impacts from construction?
Section 83B(1) in Div 2A Pt 4 of the EPA Act provides specifically for staged development consisting of a concept proposal for the development of a site with detailed proposals for separate parts of the site to be the subject of subsequent development applications. The applicant for development Arts NSW requested this approach as expressly provided by s 83B(2). Under s 83B(3) no development can be carried out on a site if consent is granted for a staged development application unless ss (3)(a) or (b) is met. Subsection 3(a) applies in this case so that a further development application in relation to development work on the site is required before construction can commence.
The omission of an assessment of construction impacts from the DG's EARs followed a request to that effect from Arts NSW during the assessment process on the basis this was a staged development application. The consent granted was for the first stage of a staged development process under Div 2A. It was explicitly not granted for construction work, as can be seen from the extracts from the Secretary's Report set out above in par 8. This limitation is identified in Condition A6 of the consent which states that construction works are to be the subject of separate development applications. Condition A6 satisfies the requirements of s 83B(3)(a) of the EPA Act.
The Tonin Report did not exist at the time development consent was granted. The initial hurdle for the Applicant's application is that the report was not before the Minister's delegate at the time consent was granted. Material before the decision-maker is usually the focus of judicial review proceedings. In Arnold (No 6) certain situations were identified in which it may be appropriate to admit expert evidence in judicial review proceedings (at [124]-[129]). It is obvious to state that each case must be considered on its own circumstances.
The amended summons alleges a failure to consider a mandatory relevant consideration namely construction noise (ground 18) and to consider submissions on those topics (ground 19). As a result of these and other alleged failures in grounds 19A and 19B the Minister's delegate is alleged to have breached s 79C and s 89E(1)(a) of the EPA Act and thereby failed to consider whether to modify the development and impose appropriate conditions in relation to construction noise and vibration (ground 19C). I do not consider ground 19C as a separate ground of review as it arises as a consequence of grounds 18 to 19B.
Grounds 18 and 19 can be considered together at this stage as they essentially concern the same issue. The ground requires statutory construction of the EPA Act to determine whether construction noise and vibration was a mandatory relevant consideration when the concept proposal was approved. At issue is whether the application of s 79C(1) by virtue of s 83D(1) results in a finding in favour of the Applicant when the statutory scheme as a whole is considered. The determination of that issue will arise at the final hearing. I am determining whether expert evidence is relevant to that issue.
The Court does not require expert evidence in order to understand that there will be construction involved in implementing works of the kind contemplated in the Walsh Bay Arts Precinct concept proposal and that this construction will be likely to have noise and vibration impacts on neighbouring properties. The precise extent of the impacts is irrelevant to the Applicant's arguments in the failure to consider a mandatory relevant consideration ground (grounds 18, 19). The Applicant's case is founded on the absence of any such assessment or inquiry, not on the detail of what is likely to have been discovered by such a process.
The Applicant submitted in support of these grounds that by virtue of s 83D(2) subsequent development applications must be consistent with the staged development application. This was submitted to mean that regardless of the construction noise and vibration impacts of the works necessary to implement the approved concept plan the development could not be subsequently altered to ameliorate these. Section 83D(3) states that subs (2) does not prevent the modification of a consent granted as a staged development application so that would appear to overcome the Applicant's concerns on this aspect of the matter.
The Applicant relied on Hoxton Park in relation to this ground. In Hoxton Park the development consent in issue approved construction of a school. The impact of a related access road and bridge was found to be relevant to the assessment of impacts of that development. The Court of Appeal upheld Biscoe J's finding that the development consent was invalid, as "an environmental impact which was a likely consequence of the development needed to be considered, even though it resulted from activity which was not itself the subject of the development application, for the purposes of s 79C(1)" (at [3]). The reasoning in Hoxton Park has no application to the Applicant's case because the development consent in question did approve construction work a fundamental difference from this case. The Tonin Report provides no assistance in relation to the statutory construction exercise required to determine whether there was a failure to determine a mandatory relevant consideration. I conclude that the Tonin Report is not relevant to grounds 18 and 19.
On the failure to inquire ground (ground 19A), the Applicant relied on Caldera, Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 ("SZIAI") and Gilbank v Bloore [2012] NSWLEC 172 ("Gilbank v Bloore"). SZIAI is a general authority for the proposition that the information about which inquiries were not made must be "easily ascertained" and that further inquiries "could have yielded a useful result" (at [26]). It is not disputed by the First Respondent that there will be construction-related impacts from the future works involved in implementing the Walsh Bay Arts Precinct concept proposal. As already stated, the precise extent of any impacts is irrelevant to the Applicant's case. As it is not in dispute that the development will have construction impacts, any inquiry by the First Respondent to reach this conclusion would not have "yielded a useful result".
In Caldera Talbot J summarised the limited extent to which the Court may go beyond the material actually before the decision-maker in judicial review proceedings as follows: 1. Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. 2. To show what a council acting reasonably ought to have done. 3. To achieve an understanding of the environmental consequences of the action or inaction of the council 4. To explain factors, principles or materials relevant to the determination. 5. In a challenge to the reasonableness of the decision where all of the relevant material before the council is in the possession of the witness to explain what was before the council. 6. As to the existence and nature of information said to be relevant to the decision where council proceeds to a decision without making any attempt to obtain that information.
This case is unlike Caldera categories 1, 2, 3 and 5 where expert evidence was allowed in order to understand what information might have been revealed if further inquiries had been undertaken. The Tonin Report is an illustration of one kind of assessment approach that could have been undertaken had the decision-maker adopted a different approach. The Tonin Report is inherently speculative as an expert report evaluating potential construction impacts. It was based on assumptions that Dr Tonin had to necessarily make given his brief. As the summary of the Tonin Report above in par 6 identifies for example vibration impacts are difficult to assess in the absence of specific construction details. The delegate did not take into account construction impacts at all. There is no benefit to the Court in having an illustration of what an expert might be able to produce were inquiries to be made, as the Tonin Report shows, in considering this ground.
There is no sound analogy with the basis on which expert evidence was admitted in Gilbank v Bloore. In that case the applicants challenged the validity of a development consent granted by Orange City Council for alterations and additions to a residential property. Recognising the limited scope for adducing expert evidence in judicial review proceedings, Craig J held that one exception to this limitation was to allow evidence required to establish the manner in which a council would ordinarily embark upon the process of decision-making (at [10]-[11]). Expert evidence attesting to the identification of an existing and applicable Australian standard for driveway widths servicing residential properties and to the common practice of a local authority in applying the identified standard was allowed. Here the approach of the Minister's delegate is clear and the Tonin Report does not provide an opinion directed to the same kind of evidence.
In Friends of King Edward Park which the Applicant also relied on, the applicant challenged the validity of a development consent granted by the council to the fourth respondent for a function centre, kiosk and carpark in a public reserve. The applicant submitted that the Minister failed to have regard to mandatory matters in s 114(1C) of the Crown Lands Act 1989 (NSW). Justice Biscoe held that geotechnical expert evidence was admissible to show what the Minister's assessment would have revealed and in order to assess the environmental consequences of the inaction (at [90]). The facts of that case differ markedly from this matter. The Tonin Report is not relevant to ground 19A.
The manifestly unreasonable ground (ground 19B) is drafted as a challenge to the decision not to take into account construction noise, not a challenge to the development consent. The ground is therefore unlike the judicial review challenge in Murrumbidgee (CA) and Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381; (1993) 112 ALR 211 ("Austral Fisheries (Full Court)") where the ultimate decision which resulted from a decision-making process was challenged. The way the Minister's delegate made the decision in this case is obvious from the material in evidence. The Tonin Report can add nothing to this ground.
In Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 expert evidence of a hydrogeologist was adduced by the applicant and admitted by the court. The evidence was directed to the operation of the existing groundwater systems and the likely impact of the water management regime proposed by the water sharing plan. The Minister did not object to the evidence on the basis that expert evidence ought not be adduced in judicial review proceedings but on the basis that the expert had failed to explain how his opinions were wholly or substantially based upon his expertise. There was no discussion at trial on the admissibility of expert evidence in the judicial review proceedings beyond the Minister's objection.
In Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 37 FCR 463, the expert evidence of a statistician was adduced to show, as accepted by the trial judge, that the formula used by the Minister in the plan for the allocation of units in the fishery was flawed and produced an irrational result (at 470). This decision based on the expert evidence of the statistician was upheld on appeal in Austral Fisheries (Full Court). The permissibility of the adducing of expert evidence was not at issue either at first instance or on appeal. The case does not assist the Applicant here. The Tonin Report is not relevant to ground 19B.
The Applicant also submitted that the evidence assisted the Court's exercise of discretion whether to apply s 25B of the LEC Act. Section 25B requires the Court to consider whether to suspend a consent rather than declare it invalid in the event that a judicial review challenge is successful. If ultimately the Court does find the Minister's delegate was legally obliged to take into account construction noise and vibration no issue of materiality can arise in this context in my view.
In Shellharbour (CA) the Court of Appeal unanimously upheld my decision in Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 refusing a council's application for a direction to adduce expert evidence in judicial review proceedings. At [35] Giles JA held that "[t]he primary purpose of the rule [r 31.19 of the UCPR] is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible in judicial review proceedings is not enough, let alone that it is possible to argue that it is relevant and admissible." I have found the evidence is not relevant. Contrary to the Applicant's submission, Shellharbour (CA) supports refusal of this application for the reasons stated above. The Applicant's Notice of Motion is dismissed.
In Class 4 proceedings s 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the UCPR apply whereby the Court has broad discretion to determine costs where the usual approach is that costs follow the event. Costs should follow the event in this case so that the Applicant should pay the First Respondent's costs of the Notice of Motion.

Orders

The Court orders as follows: 1. The Applicant's Notice of Motion dated 3 December 2015 is dismissed. 2. The Applicant must pay the First Respondent's costs of the Notice of Motion.

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: 24 March 2016

Crown Lands Act 1989(NSW)

(2012) 194 LGERA 226

(2011) 189 LGERA 348

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