Casley v Wagga Wagga City Council; Wagga Wagga City Council v Wagga Hotmix Pty Ltd & Anor

Environmental Planning and Assessment Act 1979 s 124(3) LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 Wagga Wagga Local Environmental Plan 2010

Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119 City of Sydney v Samadi [2010] NSWLEC 125 CASES CITED: Maxwell v Hornsby Council [2002] NSWLEC 92; (2002) 120 LGERA 186 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 Sahade v Owners-Strata Plan No 62022 [2006] NSWLEC 770

APPLICANT in 10522 of 2010 Mr T To SOLICITOR Friedlieb Byrne Solicitors

RESPONDENT in 10522 of 2010 Mr M Staunton SOLICITOR Lindsay Taylor Lawyers

LEGAL REPRESENTATIVES: APPLICANT in 40306 of 2010 Mr M Staunton SOLICITOR Lindsay Taylor Lawyers

RESPONDENT in 40306 of 2010 Mr T To SOLICITOR Friedlieb Byrne Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10522 of 2010 Casley v Wagga Wagga City Council 40306 of 2010 Wagga Wagga City Council v Wagga Hotmix Pty Ltd & Anor

EX TEMPORE JUDGMENT 1 Her Honour: There are two contested Notices of Motion before the Court for determination.

2 Wagga Wagga City Council (the Council) has commenced civil enforcement proceedings alleging unlawful use of land at Gap Hall Road Downside by the Respondent for a mobile asphalt batching plant and depot. The application seeks orders that this cease. The Respondent's Notice of Motion in the Class 4 proceedings seeks orders that these be stood over pending the outcome of Class 1 proceedings also commenced in relation to the mobile asphalt plant at Gap Hall Road Downside (the site).

3 The Respondent has commenced Class 1 proceedings in relation to the development the subject of the Class 4 proceedings. Expedition of the Class 1 proceedings is sought in its Notice of Motion. The development is designated development as defined under the Environmental Planning and Assessment Act 1979 (the EP&A Act) and requires the preparation of an environmental impact statement (EIS) and its public exhibition.

4 The Respondent relies on an affidavit of Mr Peter Fox solicitor dated 13 July 2010 which attests to the information and belief of Mr Casley Director of the Respondent in relation to his enquiries about required approvals, Council purchases of asphalt from Hotmix Pty Ltd from October 2009 to June 2010 and improved environmental outcomes at the site. An affidavit of Mr Fox dated 26 July 2010 in reply to that of Mr Farmer for the Council was also read. The Respondent's counsel also tendered a chronology of events. The Respondent's evidence according to the information provided to Mr Fox is that the business employs 18 people and their employment will have to cease if the plant cannot operate and that the mobile plant is relocating to the Northern Territory for two months in August. Mr Casley entered into a licence agreement with Graincorp, owner of the site, on 30 September 2009 which licence commenced on 9 August 2009 according to the licence agreement. It appears from Mr Fox's affidavits that the Respondent's use commenced sometime in September 2009.

5 The Council relies on an affidavit dated 20 July 2007 of Mr Paul planning officer of the Council dated 1 July 2010 which identifies the correspondence and other dealings between the Council and the Respondent and Mr Farmer (Manager Development Services at the Council). Its counsel tendered a lengthy chronology. The affidavit of Mr Farmer identifies occasions where Council officers consider they informed Mr Casley that development consent was required, including at a meeting in June 2009, and that the site was unsuitable and unlikely to be approved. The Wagga Wagga Local Environmental Plan 2010 (the LEP) has now been amended to the effect that such activity is prohibited on land zoned rural. Mr Farmer also attests to the circumstances in which the Council purchased a small amount of asphalt from the Respondent which practice has now stopped and was the result of an administrative oversight in the Council.

6 There is now no disagreement that the development application (DA) is for designated development. The DA was refused on 1 July 2010 by the Joint Regional Planning Panel on the basis of inadequate information being supplied. Class 1 appeal proceedings against that refusal were commenced on 2 July 2010. There has been no exhibition of an EIS as required by the EP&A Act and Environmental Planning and Assessment Regulation 2000 for designated development. An amended EIS is nearly finalised and is intended to be lodged with the Council on Tuesday 3 August 2010 and will need to be assessed by the Council and publicly exhibited before the Court can consider the DA. Finding Class 4 proceedings NOM 7 The Respondent's motion relies on s 124(3) of the EP&A Act which states: (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. 8 The importance of this provision in the statutory scheme under the EP&A Act has been recognised by Jagot J in Sahade v Owners-Strata Plan No 62022 [2006] NSWLEC 770 at [10] and this passage had been cited in numerous other decisions, for example by Biscoe J in Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119 at [8] all of whose observations I adopt.

9 A further important rationale for making an order to stand over Class 4 proceedings is to avoid unnecessary waste of costs being expended on those proceedings if they will be rendered otiose by the determination to grant development consent in Class 1 proceedings. Such a consideration applies in this case as such a determination in the Class 1 proceedings will render the Class 4 proceedings nugatory. Avoidance of unnecessary costs is an important consideration as noted in numerous similar cases such as very recently Council of the City of Sydney v Samadi [2010] NSWLEC 125 by Pepper J referring also to s 56 of the Uniform Civil Procedure Act and the emphasis on the effective dispatch of litigation including that it be cost effective. 10 There is disagreement in the evidence as to what was said at a meeting of various representatives of the Council, the Department of Regional Development and Mr Casley director of Hotmix Pty Ltd in July 2009 as to whether the need for development consent at the site was discussed. Mr Casley tells his solicitor Mr Fox that it was not, while the Council officer Mr Davis gives evidence that it was. It is unnecessary that I resolve this dispute in the evidence in order to determine this Notice of Motion. Nor do I need to resolve whether the Council's purchase of asphalt has any bearing on the Class 4 proceedings.

11 For the reasons stated above, application of s 124(3) suggests that an order ought be made subject to consideration of whether an interlocutory order ought be made restraining the use the subject of the Class 1 proceedings. The Class 1 proceedings concern designated development which does not currently have approval. The importance of the assessment of designated development and the statutory framework for this has been referred to by the Court of Appeal (Tobias JA) in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 referring in turn to my decision in Maxwell v Hornsby Council [2002] NSWLEC 92; (2002) 120 LGERA 186.

12 The Respondent is presently conducting the designated development activity of mobile asphalt batching without any controls, an unsatisfactory circumstance in my view. While there is evidence tendered in support of the Respondent's Notice of Motion in the form of letters from neighbours to the effect that there is little impact compared to what previously occurred on the site the Council points to references in the material lodged in support of the development application to potential odour, noise and traffic impacts. There have also been two anonymous complaints about the activities on the site. There is presently no time limit on the hours of operation at the site.

13 Alternatively to the making of an interlocutory order, an appropriate undertaking concerning management of the designated development activity on the site pending the determination of the Class 1 proceedings from the Respondent can be considered.

14 The Respondent has offered to the Court an undertaking in the following terms: 1. From 3 September 2010 it will remove from the land known as 112 Gap Hall Road, Downside ("the Site") the mobile asphalt batching plant and that no such plant will be brought to the Site unless and until such time as development consent is granted permitting such use of the Site for a mobile asphalt batching plant. This use of the Site will be restricted to between 7am and 7pm, Monday to Saturday. 2. From 3 September 2010, until proceedings 10522/10 are finally determined by the Court, it will not use the Site other than for the storage of equipment (other than a mobile asphalt batching plant) within existing improvements and administrative (office) functions. This use of the Site will be restricted to between 9am and 5pm, Monday to Saturday. 3. After proceedings 10522/10 are determined by the Court, the use permitted by paragraph 2 will cease, except as permitted by any consent to that application.

15 On that basis I consider the order sought in the Notice of Motion to stand over the Class 4 proceedings pending the Class 1 proceedings can be made. Notice of Motion in Class 1 proceedings 16 In relation to the Class 1 proceedings, expedition cannot be granted as the matter cannot be readied immediately for hearing as such an order would require. It is necessary for the amended EIS to be provided to the Council for its assessment. Public exhibition of the EIS is necessary in order to comply with the EP&A Act and Regulations in relation to the consideration of designated development. The Council's consent to the amendment of the DA with reliance on the amended EIS will also be necessary. An appropriate timetable should be made.

17 Each party is to pay its own costs of each of the Notices of Motion. Orders 18 The Court makes the following orders in matter no 10522 of 2010: 1. The (telephone) callover of these proceedings on Monday 2 August 2010 is vacated. 2. The Applicant is directed to lodge with the council any amended Environmental Impact Statement by Tuesday 3 August 2010. 3. Matter stood over to Registrar's callover list Tuesday 10 August 2010 for future directions. 19 The Court makes the following orders in matter no 40306 of 2010: 1. Upon the Respondent's written undertaking dated 30 July 2010, which is accepted by the Court, the proceedings are adjourned. 2. The parties are directed to relist the proceedings upon determination of proceedings 10/10522. 3. Each party to pay its own costs.

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.