Faulks v Independent Planning Commission; Faulks v Independent Planning Commission

Legislation Cited: Civil Procedure Act 2005, ss 56-59, 64, 65, 149B, 149E
Environmental Planning and Assessment Act 1979, ss 4.59, 8.8, 8.13, 8.14, Div 8.3, Pt 4
Land and Environment Court Act 1979, ss 17, 20, 36(3), 39, 56A, 68, 71(1)
Land and Environment Court Rules 2007, r 3.7
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6(2)
Supreme Court Act 1970, s 48
Uniform Civil Procedure Rules 2005, rr 13.4, 14.28, 28.5, 42.1
Yass Valley Local Environmental Plan 2013, cl 6.8

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWSC 867
Attard v Transport for New South Wales [2013] NSWLEC 176
Cincotta v Police Citizens Youth Clubs NSW Ltd [2018] NSWSC 1588
Faulks v Independent Planning Commission [2026] NSWLEC 1032
Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161
Joseph v Kiama Municipal Council [2023] NSWLEC 148
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Monti v Roads and Maritime Services (No 2) [2018] NSWLEC 178
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Leeton Courthouse) [2025] NSWLEC 69
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106
Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
V’landys v Land and Environment Court of NSW [2012] NSWLEC 218; (2012) 193 LGERA 47
Young v King [2016] NSWCA 282
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344

Category: Procedural rulings

Parties: Benjamin Michael Faulks (First Applicant)
Johnny Roso (Second Applicant)
Independent Planning Commission (First Respondent)
Wallaroo Solar Farm Pty Ltd (Second Respondent)

Representation: Counsel:
H Grace (First Applicant)
H Grace (Second Applicant)
M Astill (First Respondent)
N Sharp SC with A Hannam (Second Respondent)
Solicitors:
Kamy Saeedi Law (First Applicant)
Kamy Saeedi Law (Second Applicant)
NSW Department of Planning, Housing and Infrastructure (First Respondent)
Bick & Steele (Second Respondent)

File Number(s): 2024/460824 and 2026/79109

Publication restriction: Nil

JUDGMENT

The Parties File Multiple Interrelated Motions

1. This judgment concerns three notices of motion filed by the parties in related Class 1 and Class 4 proceedings:

(a) first, an application filed on 2 March 2026 by Benjamin Faulks and Johnny Roso in the Class 4 proceedings seeking orders that (“the amendment application”):

(i) leave be granted to Faulks and Roso to file an amended summons; and (ii) that the Class 4 proceedings be heard at the same time as an appeal under s 56A of the Land and Environment Court Act 1979 (“LEC Act”) in Class 1 proceedings (“the s 56A appeal);

(b) second, an application filed on 10 March 2026 by the second respondent, Wallaroo Solar Farm Pty Ltd (“Wallaroo”), in the Class 4 proceedings seeking an order that pursuant to (“the dismissal application”):

(i) r 13.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”) that the summons filed in those proceedings be summarily dismissed; or, in the alternative, (ii) r 14.28 of the UCPR that the summons be struck out; and

(c) third, an application filed on 26 March 2026 by Faulks and Roso in the Class 1 proceedings seeking an order that the s 56A appeal be heard at the same time as the Class 4 proceedings (“the joint hearing application”).

2. For the reasons explained below, the disposition of the motions is as follows:

(a) the amendment application is refused in part, with costs; (b) the dismissal application is refused, with costs; and (c) the joint hearing application filed in the Class 1 proceedings and also sought in the amendment application is upheld, with no order as to costs.

The IPC Grants Consent to a Solar Farm in Wallaroo

3. On 11 September 2024 the first respondent, the Independent Planning Commission (“IPC”), granted consent, subject to conditions (“IPC’s decision”), to State Significant Development Application Number SSD 9261283 (“SSDA”) for the development of a 100-megawatt (“MW”) solar farm and 45 MW/90 MW-hour battery energy storage system at Wallaroo (“Wallaroo solar farm”).

4. The IPC's reasons for its decision are contained in a Statement of Reasons dated 11 September 2024.

5. On 9 October 2024 Faulks and Roso commenced a Class 1 objector appeal against the IPC's decision (“the original Class 1 proceedings”) under s 8.8 of the Environmental Planning and Assessment Act 1979 (“EPAA”).

6. On 11 December 2024 Faulks and Roso commenced the Class 4 proceedings against the IPC's decision.

7. A ground raised in the summons in the Class 4 proceedings is that the consent is invalid because, in substance, a Preliminary and Detailed Site Investigation (“PDSI”) pursuant to s 4.6(2) of State Environmental Planning Policy (Resilience and Hazards) 2021 (“SEPP”) had not been prepared, and therefore, had not been considered by the IPC in granting the consent as it was required to do. Another ground concerned consideration of, and compliance with, cl 6.8 of the Yass Valley Local Environmental Plan 2013 (“LEP”).

8. Between 11 December 2024 and 30 September 2025, the Class 4 proceedings were adjourned on six occasions. The adjournments were proposed by Faulks and Roso and were consented to by the IPC and Wallaroo.

9. On 12 December 2024 Faulks and Roso served the summons in the Class 4 proceedings on the IPC and Wallaroo.

10. On 13 December 2024 the parties participated in a s 34 conciliation conference in the original Class 1 proceedings, which was terminated on 28 March 2025.

11. On 3 April 2025 the original Class 1 proceedings were listed for hearing on 1 to 4 September 2025.

12. The following day, the Class 4 proceedings were adjourned until 3 October 2025.

13. On 20 August 2025 Wallaroo filed a notice of motion in the original Class 1 proceedings seeking leave to amend the SSDA to include the PDSI prepared by JBS&G, dated 20 August 2025.

14. The motion was supported by an affidavit from Natasha Nadj affirmed and filed on 20 August 2025, together with exhibits.

15. Between 1 to 4 September 2025, the original Class 1 proceedings were heard before a Commissioner of the Court.

16. On the second day of the hearing, the Commissioner granted Wallaroo leave to amend the SSDA to include the PDSI and stated at that time that she would “give more detailed reasons in the judgment” for doing so.

17. On 30 September 2025 the Class 4 proceedings were adjourned until “within 14 days” of judgment being delivered in the original Class 1 proceedings.

18. On 29 January 2026 O’Neill C delivered judgment in Faulks v Independent Planning Commission [2026] NSWLEC 1032, providing written reasons for granting Wallaroo leave to amend the SSDA to include the PDSI, dismissing the appeal, and granting consent subject to conditions. The Commissioner relevantly ordered that (Faulks at [155]):

(1) The Second Respondent is granted leave to amend State Significant Development Application SSD-9261283 to include the Preliminary and Detailed Site Investigation for the Wallaroo Solar Farm prepared by JBS& G dated 20 August 2025.

(2) The appeal is dismissed.

(3) The amended State Significant Development Application SSD-9261283 for a 100MW solar farm and associated infrastructure is determined by the grant of consent, subject to the conditions at Annexure A.

19. On 25 February 2026 Faulks and Roso commenced the s 56A appeal.

20. The s 56A appeal seeks as relief that orders 1, 2 and 3 of O’Neill C’s decision in Faulks is set aside, or in the alternative, that orders 2 and 3 be set aside and that the matter be remitted to a Commissioner other than O’Neill C to be determined according to law.

21. The grounds of appeal listed in the s 56A appeal summons are as follows:

1 The Commissioner erred on a question of law by granting the Second Respondent leave to amend State Significant Development Application SSD-9261283 to include the Preliminary and Detailed Site Investigation for the Wallaroo Solar Farm prepared by JBS&G dated 20 August 2025 because:

a. the Court did not have the jurisdiction or power to amend a development application on an appeal in respect of a consent that was invalid, or that the Court knew or ought to have known was invalid, or that the Court knew or ought to have known had been granted in breach of a precondition to the power to grant consent,

b. the power to amend a development application under s 39 of the Land and Environment Court Act 1979 (NSW) (LEC Act), s 8.14 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and s 37 of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation) had been exhausted once the Independent Planning Commission determined the development application by granting consent, subject to conditions, in circumstances where the consent continued to have effect under s 8.13(1) of the EP&A Act,

c. it was an abuse of process for the Second Respondent to seek leave to amend the development application for reasons unconnected with the contentions raised in the Court below and in the absence of any issue raised by the Court,

d. it was an abuse of process to use the Court's amendment powers in its Class 1 jurisdiction to amend a development application to validate a consent that was invalid for jurisdictional error, and

e. it would undermine the EP&A Act's object of "provid[ing] increased opportunity for community participation in environmental planning and assessment" (s 1.3(j)) if development applications could be amended in the absence of any legislative framework to enable re-exhibition to occur in the context of an appeal under s 8.8 of the EP&A Act.

Particulars

In respect of Ground 1(a), the Appellants say that the consent was invalid and/or the Court knew or ought to have known that the consent was invalid because the consent authority, the Independent Planning Commission, failed to consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines pursuant to cl 4.6(2) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (NSW), and the Court was aware of this fact: see, Faulks v Independent Planning Commission [2026] NSWLEC 1032 at [5].

The Appellants rely on their Submissions in Response to the Motion Filed on 20 August 2025.

2 In the premises of the concession of jurisdictional error in the consent as manifest in the application for amendment of the application, and in the premises of the absence of power to amend the application, the Commissioner was bound to uphold the appeal and dismiss the development application.

Particulars

Notice of Motion filed on 20 August 2025 and the affidavit in support of Natasha Nadj affirmed and filed on 20 August 2025 and associated Exhibit NN-2.

Faulks v Independent Planning Commission [2026] NSWLEC 1032 at [5].

3 The Commissioner erred on a question of law by failing to take into consideration the submissions made in accordance with the EP&A Act and the EP&A Regulation, which was a mandatory relevant consideration under s 4.15(1)(e) of the EP&A Act.

Particulars

State Significant Development Application SSD-9261283 was placed on public exhibition from Wednesday, 24 May 2023 until Tuesday, 20 June 2023.

During this time, the Department of Planning and Environment received 115 submissions, comprising: 96 submissions from individuals; 5 submissions from community organisations; 12 submissions from public agencies (of which 5 provided no comment); and 1 submission from the Yass Valley Council.

Of the 96 submissions received from individuals, 90 objected to the project, 5 supported the project, and 1 was a comment. The most frequently raised issue in the objections was the project's visual impact, and the Appellants referred to the objections that raised visual impact concerns in their submissions: see, e.g., "Appellants' Written Outline of Submissions" dated 3 September 2025 at [107](g) and "Submissions in Response to the Motion filed on 20 August 2025" dated 29 August 2025 at [18].

The submissions made during the exhibition period, and particularly those that raised visual impact, were of relevance to the development the subject of the development application and the issues in dispute in the Court below.

The Commissioner failed to take into consideration any of the submissions made during the exhibition period and only took into consideration the submissions made by objectors who gave evidence at the hearing: see, Faulks v Independent Planning Commission [2026] NSWLEC 1032 at [13]-[14].

The Commissioner was required to take into consideration the submissions made in accordance with this EP&A Act and the EP&A Regulations under s 4.15(1)(e), and the Commissioner's failure to take those submissions into consideration was an error law.

4 The Commissioner erred on a question of law by misconstruing the statutory requirement in s 4.15(1)(d) of the EP&A Act to take into consideration such of the submissions made in accordance with EP&A Act or the EP&A Regulations as are of relevance to the development the subject of the development application by only having regard to the submissions made by objectors who gave evidence at the hearing and not any of the submissions made during the exhibition period: Faulks v Independent Planning Commission [2026] NSWLEC 1032 at [13]-[14].

Particulars

The Appellants rely on the particulars to Ground 2 in respect of this ground.

22. The following day, on 26 February 2026, Faulks and Roso sought the IPC’s and Wallaroo’s consent to file an amended summons in the Class 4 proceedings and for the Class 4 proceedings and the s 56A appeal to be heard concurrently.

23. Later that day, Wallaroo informed Faulks and Roso that it did not consent to the amendments or any joint hearing. The IPC was unable to provide instructions prior to the directions hearing listed the following day, that is, on 27 February 2026.

The Amendment Application

24. The amendment application seeks an order that the summons be amended and that the Class 4 proceedings be heard concurrently with the s 56A appeal.

25. In relation to order 1, the amendments proposed to the summons sought to challenge the validity of O’Neill C’s decision to grant consent (see the underlined text). In terms of the relief sought, the summons prayed in aid:

1 A declaration that the decision of the first respondent, the Independent Planning Commission of NSW (IPC), to grant consent, subject to conditions, to State Significant Development Application Number SSD 9261283 (SSDA) for the development of a 100-megawatt (MW) solar farm and 45 MW / 90 MW-hour battery energy storage system at Wallaroo dated 11 September 2024 (IPC's Decision) is invalid ab initio and of no effect.

2 An order setting aside the IPC's Decision.

3 A declaration that the decision of Commissioner O'Neill, in her capacity as a Commissioner of the NSW Land and Environment Court, to dismiss the appeal against the Original Decision and to grant consent, subject to conditions, to the SSDA in Faulks v Independent Planning Commission [2026] NSWLEC 1032 is invalid and of no effect (Commissioner's Decision).

4 An order setting aside the Commissioner's Decision.

5 Costs.

26. With respect to the Commissioner’s decision in Faulks, the proposed amended grounds pleaded:

The Commissioner's Decision

7 The Commissioner's Decision is invalid for iurisdictional error because, in the premises of the invalidity of the Original Decision, the Land and Environment Court did not have jurisdiction to determine a merits appeal in the absence of a valid determination by the IPC and/or was bound to uphold the appeal and dismiss the SSDA.

Particulars

Helman v Byron Shire Council (1995) 87 LGERA 349, 359

Botany Bay City Council v Remath Investments (No 6) Pty Ltd [1998] NSWCA 43 at [23]

Barca v Wollondilly Shire Council [2014] NSWLEC 118; 205 LGERA 454 at [83]

The applicants rely on their Submissions in Response to the Motion Filed on 20 August 2025 at [3]-[25]

8 The Commissioner's Decision is invalid for iurisdictional error because, in determining the SSDA, she failed to take into consideration the submissions made in accordance with the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation), which was a mandatory relevant consideration under s 4.15(1)(e) of the EP&A Act.

Particulars

The SSDA was placed on public exhibition from Wednesday, 24 May 2023 until Tuesday, 20 June 2023.

During this time, the Department of Planning and Environment received 115 submissions. comprising: 96 submissions from individuals: 5 submissions from community organisations; 12 submissions from public agencies (of which 5 provided no comment); and 1 submission from the Yass Valley Council.

Of the 96 submissions received from individuals, 90 objected to the project, 5 supported the project, and 1 was a comment. The most frequently raised issue in the objections was the project’s visual impact, and the Appellants referred to the objections that raised visual impact concerns in their submissions: see, e.g., "Appellants' Written Outline of Submissions" dated 3 September 2025 at [107](g) and "Submissions in Response to the Motion filed on 20 August 2025" dated 29 August 2025 at [18].

The submissions made during the exhibition period, and particularly those that raised visual impact, were of relevance to the development the subject of the development application and the issues in dispute in the Court below.

The Commissioner was required to take into consideration the submissions made in accordance with this EP&A Act and the EP&A Regulations as a mandatory relevant consideration under s4.15(1)(e) of the EP&AAct.

The Commissioner failed to take into consideration any of the submissions made during the exhibition period and only took into consideration the submissions made by objectors who gave evidence at the hearing: see, Faulks v Independent Planning Commission [2026] NSWLEC 1032 at [13]-14].

9 The Commissioner's Decision is invalid for jurisdictional error because she misconstrued the statutory requirement in s 4.15(1)(d) of the EP&A Act to take into consideration such of the submissions made in accordance with EP&A Act or the EP&A Regulations as are of relevance to the development the subject of the development application by only having regard to the submissions made by objectors who gave evidence at the hearing and not any of the submissions made during the exhibition period: Faulks v Independent Planning Commission [2026] NSWLEC 1032 at [13]-[14].

Particulars

The Appellants rely on the particulars to Ground 8 in respect of this ground.

27. Faulks and Roso relied upon an affidavit of Michael Mascitti sworn 2 March 2026. Mascitti is a solicitor at Kamy Saeedi Law, the solicitors for Faulks and Roso. Although filed in the Class 4 proceedings, it was also relied upon for the purpose of the s 56A appeal, in particular, for the joint hearing application.

28. Wallaroo relied upon two affidavits of Natasha Nadj affirmed 10 and 13 March 2026, respectively. Nadj is a solicitor employed by Bick & Steele, the solicitor for Wallaroo. In her earlier affidavit, Nadj commenced by setting out the procedural history of the original Class 1 proceedings. She then deposed to multiple adjournments having been sought by Faulks and Roso in the Class 4 proceedings between 13 February 2025 and 27 February 2026, all of which were consented to by the IPC and Wallaroo.

29. Some of the procedural delay with the Class 4 proceedings was due to the s 34 conciliation process in the original Class 1 proceedings, which having commenced on 13 December 2024 did not terminate until 28 March 2025. During a directions hearing before Pain J on 20 March 2025, the Court was informed that “if the Class 1 Proceeding is resolved as part of that [s 34] process, then these proceedings [Class 4] will also be resolved”.

30. The remainder of the delay can be attributed to the parties and the Court agreeing to wait until Faulks had been delivered by the Commissioner, that is, from 15 September 2025 to February 2026.

31. All three affidavits are referred to, where relevant, below.

Applicable legal principles

32. As Faulks and Roso correctly submitted, the Court has the discretionary power to amend the Class 4 summons pursuant to ss 64 and 65 of the Civil Procedure Act 2005 (“CPA”):

64 Amendment of documents generally

(1) At any stage of proceedings, the court may order—

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. …

65 Amendment of originating process after expiry of limitation period

(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1)(b), amend the originating process so as—

(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64. …

33. The exercise of power under these provisions includes the matters the Court must take into account in ss 56 to 59 of the CPA. In particular, s 58 of the CPA provides:

58 Court to follow dictates of justice

(1) In deciding—

(a) whether to make any order or direction for the management of proceedings, including—

(i) any order for the amendment of a document, and

(ii) any order granting an adjournment or stay of proceedings, and

(iii) any other order of a procedural nature, and

(iv) any direction under Division 2, and

(b) the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2) For the purpose of determining what are the dictates of justice in a particular case, the court—

(a) must have regard to the provisions of sections 56 and 57, and

(b) may have regard to the following matters to the extent to which it considers them relevant—

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

34. Faulks and Roso also submitted that the Court also had power to amend the summons under s 68(1) of the LEC Act. This is incorrect because that provision expressly does not apply to proceedings in Classes 1 to 4 of the Court’s jurisdiction (see s 68(4) of the LEC Act).

35. There was no dispute between the parties as to the applicable legal principles concerning applications to amend an originating process. They were summarised (see also Monti v Roads and Maritime Services (No 2) [2018] NSWLEC 178 at [31]) in New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Leeton Courthouse) [2025] NSWLEC 69 (at [27]-[31]):

27 The discretion must, however, be exercised having regard to the overriding purpose set out in s 56 of the CPA, together with the objects of case management and the requirement for the Court to have consideration to the dictates of justice in ss 57 and 58 of the CPA (Kelly v Mina [2014] NSWCA 9 at [47]-[48]).

28 Those who pine for the past when a party was all but entitled to raise by way of amendment an arguable claim, subject to the payment of costs as compensation, conduct a futile exercise in nostalgia. As the High Court stated in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [111] and [112], footnotes omitted):

111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

29 The factors that a court will have regard to in determining whether or not to exercise its discretion to allow the amendment include:

(a) the nature and importance of the amendment to the party applying for it (Aon at [102]);

(b) the extent of the delay and the costs associated with the amendment (Aon at [102]);

(c) the explanation for the delay (Aon at [108]);

(d) the prejudice to the parties (Aon at [5], [93]-[95], [100]-[102] and [114]);

(e) the parties’ choices to date in the litigation and the consequences of those choices (Aon at [112]);

(f) the strength of the proposed amendment in the sense of whether or not it is futile; and

(g) the potential loss of public confidence in the legal system which can arise where a court is seen to have acceded to applications made absent sufficient justification or explanation (Aon at [5], [24] and [30]).

30 The onus is on the party seeking leave to amend to persuade the court that such leave should be granted.

31 Finally, the weight to be given to the factors identified in Aon, and the outcome of that balancing exercise, will vary with the circumstances of each case.

Parties’ submissions on amendment application

36. According to Faulks and Roso, leave should be granted to amend the Class 4 summons for these reasons:

(a) the amendments are necessary to reflect the publication of the decision in Faulks, which, pursuant to s 8.14(2) of the EPAA, is the final decision of the consent authority and is therefore the “proper object of the judicial review challenge”. It remains necessary, however, to challenge the IPC’s decision because:

(i) first, the relief sought in the Class 4 proceedings with respect to the IPC’s decision, including the declaratory relief, provides the basis for ground 7 and, in part, prayers 3 and 4 of the proposed amended summons; and (ii) second, if O’Neill C’s decision is set aside either by reason of the s 56A appeal or the Class 4 proceedings, the IPC’s decision will be the operative decision and the proper subject of challenge. It would, for example, be open to them to discontinue the Class 1 proceedings prior to redetermination, resulting in the IPC’s decision being the only decision standing;

(b) the application for leave to amend was brought promptly; (c) the timing of the application will not occasion any prejudice to Wallaroo and there are likely to be only minimal costs thrown away occasioned by the amendment; (d) the timing and necessity for the amendments arise out of the timing of the Commissioner’s decision in Faulks, which was beyond their control. The parties agreed to adjourn the Class 4 proceedings until after the original Class 1 proceedings had been finalised, which contemplated that if the latter appeal was dismissed, amendment of the Class 4 summons would be required; (e) the amendments avoid a multiplicity of proceedings because if refused, Faulks and Roso could commence fresh Class 4 proceedings in respect of the Commissioner’s decision pursuant to s 4.59 of the EPAA. This would not promote the efficient disposal of the Court’s business; (f) the amendments do not raise matters that are hopeless or futile. The invalidity of the IPC’s decision is more than arguable; and (g) there would be no loss of public confidence in the legal system by reason of the amendments.

37. The IPC made submissions in conformity with the Hardiman principle (R v Australian Broadcasting Tribunal*;* E**x parte Hardiman [1980] HCA 13; (1980) 144 CLR 13) with respect to jurisdictional issues. Otherwise, it submitted to any order save as to costs.

38. In short, the IPC submitted that leave ought not be granted because the Court lacked the jurisdiction to grant the relief sought by the proposed amendment. This is because only the Supreme Court of New South Wales has the jurisdiction to entertain a judicial review challenge to a decision of a Commissioner of the Court. The power conferred upon the Court by s 20 of the LEC Act to hear and dispose of judicial review proceedings does not extend to review of a Commissioner exercising jurisdiction in Class 1 of the Court’s jurisdiction.

39. In response to Faulks’s and Roso’s submissions, the IPC stated that it agreed to adjourn the Class 4 proceedings because, if Faulks and Roso were successful in the original Class 1 proceedings, the Class 4 proceedings would be inutile. In doing so, it did not envisage any amendment of the Class 4 summons if the original Class 1 proceedings were unsuccessful.

40. Wallaroo noted the substantial overlap between the grounds raised in the s 56A appeal and the proposed amended summons, the corollary of which was that if Faulks and Roso were successful in the s 56A appeal, the SSDA would be redetermined and the additional grounds in the amended summons did not advance their position. In addition, the appropriate pathway for a party to challenge a decision of a Commissioner in Class 1 was on a question of law under s 56A of the LEC Act, not Class 4 judicial review proceedings.

41. Therefore, the amendments ought not be permitted on the basis that, Wallaroo submitted, they lacked utility; would result in additional costs being incurred by Wallaroo having to respond to them; would reward Faulks and Roso for poor forensic decision-making, especially their decision to proceed on the basis that the original Class 1 proceedings ought to be determined prior to the Class 4 proceedings (thereby necessitating the adjournment of the latter), and their decision to omit the grounds of challenge in the summons from the Class 1 Statement of Facts and Contentions (“SOFAC”) in the original Class 1 proceedings notwithstanding that these grounds raised jurisdictional preconditions that, it was asserted, were not satisfied in the IPC’s decision to approve the SSDA; would result in the duplication of grounds in the Class 4 and s 56A appeal; would result in a loss of public confidence in the legal system by the encouragement of a multiplicity of proceedings; and would necessitate the joinder of the Land and Environment Court as a party to the proceedings.

Leave to amend the summons is refused

42. There can be no doubt that Faulks and Roso have brought the amendment application promptly after the Faulks judgment was delivered and the s 56A summons was filed.

43. In terms of prejudice to the parties, I consider this factor to be somewhat neutral. If the amendments are not permitted, Faulks and Roso have the benefit of the extant Class 4 proceedings to which the three month time limitation contained in s 4.59 of the EPAA does not apply. Any prejudice arising to the IPC or Wallaroo occasioned by the amendments can arguably be met by an appropriate costs order in their favour.

44. The nature and importance of the amendments to Faulks and Roso is, in my opinion, limited. As Mascitti acknowledged on their behalf, there is considerable overlap between the grounds already raised in the s 56A appeal and the proposed amendments to the summons. Furthermore, the Class 4 proceedings remain extant, and with it Faulks’s and Roso’s challenge to the lawfulness of the IPC’s decision.

45. Nevertheless, the appropriate, and in my view, only available vehicle for challenging in this Court a decision of a Commissioner exercising the Court’s jurisdiction in Class 1 proceedings is on a question of law pursuant to s 56A of the LEC Act; not Class 4 judicial review proceedings.

46. First, it is true that pursuant to s 8.14(2) of the EPAA the decision of the Commissioner is the final decision of the consent authority. That is, by reason of the orders made by O’Neill C, the SSDA was determined by a grant of conditional consent.

47. Section 8.14 of the EPAA relevantly states that (emphasis added):

8.14 Powers of Court on appeals

(1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

48. Thus, upon consent being granted by the Commissioner, the IPC’s original decision was merged into, or subsumed by, the Commissioner’s decision.

49. This conclusion is reinforced by s 39(5) of the LEC Act, which is in not dissimilar terms to s 8.14(2) of the EPAA:

(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

50. If Faulks and Roso did not include the failure of the IPC to satisfy all relevant jurisdictional preconditions prior to granting consent to the SSDA in their SOFAC in the original Class 1 proceedings, the consequences of that omission cannot be rectified by seeking to amend the Class 4 summons in the manner that they contend for.

51. As Wallaroo submitted, it is well established that one consequence of a merits review determination is that it may cure defects which would have rendered the original decision invalid (Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 116; Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344 at [32]; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 at [12]-[14] and [37]-[43] and Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [19]. Both Zubair and Ahmed were cited with approval in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [40] and [95]; and in Cincotta v Police Citizens Youth Clubs N**SW Ltd [2018] NSWSC 1588 at [6]-[9], Zubair and Ahmed were applied to a Medical Assessment Certificate that was subject to review by a Medical Appeal Panel). Subject to the outcome of the s 56A appeal, this would appear to be the case here.

52. By their conduct in filing the notice of motion, Faulks and Roso appear to acknowledge that the Class 4 proceedings ought to have been determined prior to the original Class 1 proceedings, which would have at least preserved the subject-matter of the Class 1 proceedings were they unsuccessful in the Class 4 judicial review proceedings.

53. Second, the original Class 1 proceedings were an appeal under Div 8.3 of the EPAA, namely, an objector appeal brought by Faulks and Roso pursuant to s 8.8 of that Act. As stated above, by reason of s 8.14(2) of the EPAA, the Commissioner’s decision has superseded the decision of the IPC.

54. In other words, by operation of s 8.14(2) of the EPAA and s 39(5) of the LEC Act, the decision of the Court in a Class 1 appeal is appropriately deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal, in this instance, the IPC.

55. However, this does not give rise, under any statute governing the jurisdiction of the Court, to a right to challenge the validity of the Commissioner’s decision in Class 4 proceedings. The operative decision is that of the Court and not the IPC. As stated above, the proper avenue of challenge is on a question of law under s 56A of the LEC Act. Once that appeal is heard and determined, the Court can either dismiss the appeal or remit it back to O’Neill C or another Commissioner for redetermination according to law. Upon remitter that decision again replaces the decision of the IPC because the Commissioner is the consent authority.

56. This is not to say that the IPC decision ceases to have all effect. Section 8.13(1) of the EPAA expressly provides as such in relation to the SSDA:

8.13 Effect of appeals on operation of consents

(1) If the granting of a development consent for development (other than State significant development) is the subject of an appeal made under this Division, the development consent ceases to have effect.

57. And had the original Class 1 proceedings before the Commissioner been discontinued by Faulks and Roso prior to determination, then the IPC consent would have been revived. Section 8.13(2) states as much:

(2) If an appeal under this Division is discontinued, the consent is revived on the discontinuation of the appeal.

58. A scenario also exists where Faulks and Roso are successful in their s 56A appeal but discontinue the Class 1 appeal prior to its redetermination. In this situation the IPC decision would be revived, and Faulks and Roso could proceed with their existing Class 4 judicial review challenge without prejudice.

59. But both are presently hypothetical, and therefore, I agree with Wallaroo that this is a case where it would be inappropriate to allow the amendment because there is no issue to be tried.

60. Third, except as provided for by s 56A of the LEC Act, this Court does not, contrary to the submissions of Faulks and Roso, have the jurisdiction to entertain a judicial review challenge to a decision by a Commissioner of the Court.

61. In hearing and determining the original Class 1 proceedings O’Neill C was exercising the powers of the Court conferred upon her by s 17 of the LEC Act.

62. Section 20(2) of the LEC Act relevantly confers jurisdiction on the Court to engage in judicial review of “a planning or environmental law” (as defined in s 20(3)):

(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings—

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,…

63. No reference is made to the decisions of Commissioners of the Court in s 20(2) of the LEC Act. Nor is the LEC Act defined as a “planning or environmental law” having regard to the statues referred to in s 20(3) for the purpose of s 20(2) of the LEC Act.

64. Furthermore, an application for judicial review of the exercise of power by a Commissioner in Class 1 proceedings is subject to s 48 of the Supreme Court Act 1970 (“SCA”). That provision provides that:

48 Assignment to the Court of Appeal

(1)

(a) In this section—

specified tribunal means—

(i) the Land and Environment Court or a Judge of that Court,

…

(2) There are assigned to the Court of Appeal proceedings in the Court—

(a) (Repealed)

(b) for commanding or otherwise requiring a specified tribunal to perform a public duty,

(c) for prohibiting or otherwise restraining a specified tribunal from proceeding in any matter before the tribunal,

(d) for commanding or otherwise requiring the removal into the Court of any matter before a specified tribunal, whether for the purpose of quashing or otherwise, but this paragraph has effect subject to subsection (3),

(e) for determining, by declaration or otherwise, any matter concerning the powers of a specified tribunal,

(f) on an appeal from a specified tribunal,

(g) for otherwise reviewing a decision of a specified tribunal,

(h) on a case stated by a specified tribunal,…

65. Proceedings in the Supreme Court for reviewing a decision of a “specified tribunal”, which includes the Court or a judge of the Court, are therefore assigned to the Court of Appeal pursuant to s 48(2)(g) of the SCA. As Wallaroo correctly, in my opinion, noted, this is why s 71(1) of the LEC Act (which is concerned with the exclusive jurisdiction of the Court) states that:

(1) Subject to section 58 [Class 4 appeals], proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court.

66. Accordingly, it is the Court of Appeal that has jurisdiction to hear appeals from the Court, and not the Court unless expressly stated, as is provided for in s 56A of the LEC Act.

67. In Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWSC 867, Fagan J dealt with an application to transfer judicial review proceedings commenced in the Supreme Court to the Court. A non-party objector had commenced judicial review proceedings in the Supreme Court in respect of a decision of a Commissioner of the Court. As a non-party objector, the objector had no right of appeal under s 56A of the LEC Act but could seek judicial review of the Commissioner’s decision (Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [47]). The objector then sought to have the proceedings transferred to the Court pursuant to ss 149B and 149E of the CPA.

68. In holding that the proceedings should be removed to the Court of Appeal, his Honour held that this Court had no jurisdiction to determine the proceedings absent transfer (at [11]):

11 Of course, if it were very clear that the applicant’s summons ought to be transferred to the Land and Environment Court then it would be most efficient for me to do that rather than remove it into the Court of Appeal. However I do not consider that there is a clear case in favour of such transfer. For one thing, in the Land and Environment Court the summons would have to be determined by a single judge. Such a proceeding does not fall within any of the classes of litigation contemplated by the Land and Environment Court Act, being Classes 1-8 defined in Pt 3 Div 1, and the Court would have jurisdiction only by force of s 149E of the Civil Procedure Act. …

69. The observations made by Fagan J in Al Maha were consistent with the remarks made earlier by Basten JA in Young v King [2016] NSWCA 282 (at [18]):

18 Regardless of the scope and effect of s 149E, it was not “appropriate” to transfer the s 69 proceedings to the Land and Environment Court, whether by consent or not. Similarly, it would not be “appropriate” to transfer to that Court an appeal from a judgment of that Court pending in this Court. There does not appear to be any other case in which a summons invoking relief under s 69 of the Supreme Court Act has been transferred to the very court whose orders are the subject of the relief sought.

70. Therefore, even if there was an arguable issue to be tried raised by the amendments to the summons, the proposed relief could not be granted by this Court because it lacks the jurisdiction to do so.

71. Fourth, the Court would need to be joined as a respondent to the Class 4 judicial review proceedings as a necessary party, which Faulks and Roso have not sought to do. They have not done so because, according to them, the effect of the deeming provisions contained in s 39(5) of the LEC Act and s 8.14(2) of the EPAA, mean that on appeal the decision of the Commissioner is deemed to be that of the IPC, and therefore, they are the properly named respondent, not the Court.

72. This submission was premised upon an asserted tension between s 8.13(3) and 8.14(2) of the EPAA, which purportedly provides for two different consent authorities, namely the Court (by reason of s 8.13(3)) and the consent authority (by reason of s 8.14(2)).

73. Section 8.13(3) states that:

(3) A development consent that is granted as a result of a decision on an appeal under this Division is taken to be a development consent duly granted under Part 4. Any such development consent takes effect, subject to any order of the Court, on and from the date the decision is registered on the NSW planning portal.

74. In my view, no incongruity arises between the two provisions and they reside comfortably with each other within the statutory framework of the EPAA, and moreover, harmoniously with the operation of the LEC Act. The former provision operates to confer Pt 4 status on the development consent, whereas the latter makes it tolerably clear that the Court’s decision is substituted for that of the consent authority.

75. In this context, Wallaroo referred the Court to the decision of V’landys v Land and Environment Court of NSW [2012] NSWLEC 218; (2012) 193 LGERA 47, which was the sole authority that it could locate where the Court had heard Class 4 proceedings to which it was a party. But, V’landys was a case that was transferred from the Court of Appeal (where it had commenced) to the Court pursuant to s 149B of the CPA (which by reason of s 149E of that Act meant that the Court had all of the jurisdiction of the Supreme Court in respect of the proceedings).

76. In Al Maha Fagan J said in relation to V’landys that he “did not regard this precedent as a satisfactory basis upon which I should consider it ‘appropriate’ to transfer the applicant’s judicial review summons to” the Court (at [15]). He declined to do so, and the matter was removed to the Court of Appeal.

77. From the correspondence forming part of the exhibits to the parties’ evidence, it is clear that all parties were proceeding on the basis that the original Class 1 proceedings would be heard and determined prior to the Class 4 proceedings. This course was both logical and appropriate given that the grant of consent by the Court could potentially cure any alleged jurisdictional error by the IPC (see the discussion and authorities referred to above).

78. Again I agree with Wallaroo that, in light of Faulks’s and Roso’s change of position and, more significantly, the duplication and futility of the proposed amendments, to permit the changes would result in a loss of public confidence in the administration of justice.

79. Faulks and Roso further submitted in oral argument that the Commissioner did not have power under s 8.8 of the EPAA to determine the Class 1 appeal because there was no legally valid decision at law from which the appeal could lie by reason of the failure of the IPC to comply with s 4.6(2) of the SEPP and cl 6.8 of the LEP.

80. There are several reasons why this submission is misconceived. First, the decision of the IPC is valid until set aside or declared invalid. Second, s 39(3) of the LEC Act states that a Class 1 appeal is by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the original decision may be given on the appeal. That evidence would include the PDSI. As explained earlier, the Class 1 appeal can have the effect of curing any deficiency in the making of the impugned decision by the consent authority. Third, the logical corollary of Faulk’s and Roso’s argument, namely, that an appeal under s 8.8 of the EPAA requires a lawfully valid decision by the consent authority to exist in order to enliven the jurisdiction of the Court on appeal, would require all Class 4 proceedings to be heard and determined prior to the commencement of a Class 1 appeal in respect of the same subject matter. The statutory framework under both the LEC Act and the EPAA does not support this outcome. Fourth, even if the IPC’s decision was infected with jurisdictional error, this did not negate the Court’s Class 1 jurisdiction because the very existence of the IPC’s decision is the matter that enlivens the jurisdiction of the Court to exercise its powers on appeal, which it did in this instance, resulting in a final decision of the Commissioner.

81. Finally, Faulks and Roso appeared to draw a distinction between decisions made by Judges and decisions made by Commissioners, with the latter not constituting “the decision of the Court” for the purposes of s 39(5) of the LEC Act or s 8.14(2) of the EPAA. But this contention overlooks the plain and unequivocal language of s 36(3) of the LEC Act which states that, “the decision of the Commissioner or Commissioners shall be deemed to the decision of the Court.” It must be rejected.

82. For these reasons I decline to make order 1 in the amendment application.

83. With respect to order 2 (that the Class 4 and the s 56A appeal be heard together), this is dealt with immediately below. In short, the Court makes the order sought in order 2 of the amendment application notice of motion.

The Joint Hearing Application

84. The Court may order that the s 56A appeal and the Class 4 proceedings be heard concurrently. Rule 28.5 of the UCPR provides that:

28.5 Consolidation etc of proceedings

If several proceedings are pending in the court and it appears to the court—

(a) that they involve a common question, or

(b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or

(c) that for some other reason it is desirable to make an order under this rule,

the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.

85. In Attard v Transport for New South Wales [2013] NSWLEC 176 the Chief Judge identified the factors applicable to the Court’s exercise of its discretionary power under this rule (at [11], citations omitted):

11 The relevant rule is r 28.5 of the Uniform Civil Procedure Rules 2005. The parties each referred to decisions setting out the relevant factors to be considered. These include:

1. Are the proceedings broadly of a similar nature?

2. Are there issues of fact and law common to each proceeding?

3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?

5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?

6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

8. Is one proceeding further advanced in terms of preparation for trial than the others?

9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

86. In his earlier affidavit, Mascitti set out what are, in his view, the overlapping grounds in the s 56A appeal and the judicial review challenge. It was his opinion that ground 1 in the s 56A appeal was predicated upon grounds 1 to 4 of the Class 4 proceedings and raised the same issue, namely, the validity of the IPC’s decision, and that the issues raised in grounds 2, 3 and 4 of the s 56A appeal were relevantly similar to the issues raised in grounds 7, 8 and 9 in the judicial review proceedings. Thus, it was expedient to hear and determine the two sets of proceedings concurrently, resulting in savings of time and costs to the parties and concomitantly to the Court. In addition, having the same judge determine the same issues at the same time was beneficial insofar as it would eliminate the risk of conflicting findings.

87. In reply, in her later affidavit, Nadj repeated much of the procedural history of both sets of proceedings that was set out in her earlier affidavit and deposed to the prejudice that Wallaroo would suffer if the s 56A appeal and the Class 4 judicial review challenge were heard together. This prejudice consisted of:

(a) based on the usual directions and the narrow issues raised by the s 56A appeal, the appeal would be listed for one day only within 2-3 months, whereas the Class 4 proceedings would require to be attended by the preparation of affidavits, statements of agreed facts or chronologies, objections to evidence, summaries of arguments, a Court Book and an Evidence Book. There would be several directions hearings needed prior to the matter being listed for hearing, which would not be within 2-3 months. The s 56A appeal would therefore be heard prior to the listing of the judicial review proceedings; (b) as a consequence of the more onerous preparation demands, the judicial review proceedings would be more expensive to have heard and determined than the s 56A appeal; and (c) the evidence required to be prepared for the purpose of the Class 4 proceedings was not congruent with the evidence – if any – needed for the s 56A appeal.

The two sets of proceedings should be heard concurrently

88. Applying the factors referred to in Attard leads to the conclusion that the two sets of proceedings should be heard together. This is because:

(a) the two proceedings related to the same SSDA, and, as established above, raise relevantly similar, albeit not identical, grounds of appeal and of review; (b) although leave to appeal has not been granted to amend the summons, the two sets of proceedings will nevertheless raise common questions of both law and fact. Moreover, both matters will be directed primarily to questions of law with very little evidence required; (c) there is no suggestion that either proceeding is a test case. On the contrary, both are entirely orthodox in terms of their content and design; (d) on any view, hearing the Class 4 challenge with the s 56A appeal will avoid a multiplicity of proceedings and appeals; (e) even though the amendment application has been refused, given the overlap between the grounds of appeal and the grounds of review, hearing the two matters concurrently would not cause the hearing of either the s 56A appeal or the Class 4 challenge to be overly prolonged. The evidence disclosed that if the matters are heard separately each matter would require one day, whereas if the two matters were heard together the hearing would take two to three days. Why this was so was unexplained by Nadj. In my experience, especially having regard to the grounds in both sets of proceedings and the evidence required to be adduced, I would anticipate that if the proceedings were heard concurrently, this would take less, not more, time to be heard. Likewise, I would anticipate that the cost of running two separate hearings would be greater than the cost of running a single joint hearing. In other words, a concurrent hearing will result in a saving of cost and time. At the very least, it would not, in my opinion, have the opposite effect; (f) I do not accept Wallaroo’s submission that an order that the two cases be tried at the same time would create difficulties in trial management. Neither proceeding is particularly complex in terms of the questions of law and fact they raise. Appropriate case management will be able to manage any difficulties, expected or otherwise; (g) both the s 56A appeal and Class 4 proceedings are similarly advanced in terms of their preparation for trial. Although the s 56A appeal would in all likelihood be allocated a hearing date prior to the Class 4 challenge, again, if travelling together, this will be avoided; (h) finally, in terms of inconvenience and the possible delay that would be caused by preparing for and hearing the two sets of proceedings, again this can be dealt with by appropriate case management, in particular by expediting the joint hearing. In this regard, the Court acknowledges the ongoing delay in developing the Wallaroo solar farm by Wallaroo, the holder of a valid consent; and (i) there would be a risk of inconsistent judgments if the matters were not tried at the same time by the same judge.

89. It follows that unless the Class 4 proceedings are dismissed or struck out (see below), the s 56A appeal and the Class 4 judicial review proceedings should be heard concurrently.

The Dismissal Application

90. Rules 13.4(1) and 14.28(1) of the UCPR respectively provide that:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

…

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

91. In Joseph v Kiama Municipal Council [2023] NSWLEC 148 Robson J set out the principles applicable to applications for summary dismissal and strike out as follows (at [60]-[61] and [63]):

60 Although the power to summarily dismiss the proceedings is discretionary, it must be attended with caution, and it is usually only exercised in the clearest cases where it is plain and obvious that there is no issue to be tried: General Steel Industries Inc at 129-130 (Barwick CJ); Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 (‘Agar v Hyde’) at [57]. The test has been framed as to whether the matter is “so obviously untenable that it cannot possibly succeed”, is “manifestly groundless” or “would involve useless expense”: General Steel Industries at 129.

61 Summary disposal therefore requires the Court to turn its mind to whether the applicant has more than a “fanciful” prospect of success: O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3]. In doing so, the Court must consider whether there is an underlying cause of action, rather than simply whether one is pleaded. The Court must also take the case of the party resisting the application for summary dismissal at its highest: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200]. Proceedings will not be summarily dismissed once it appears that there is a real question to be determined and that the rights of the parties depend upon it. This is so even if the applicant’s prospects of success might be characterised as slim.

…

63 Similarly to applications for summary dismissal, the fatal defects in a plaintiff’s case must be very clear before the Court will intervene to strike out a pleading under r 14.28 of the UCPR: Shaw v State of New South Wales [2012] NSWCA 102 at [30].

92. It should be recalled that in exercising the discretionary power contained in rr 13.4 and 14.28 of the UCPR, the Court must have regard, and give effect, to the overriding purpose contained in s 56 of the CPA, as informed by ss 57-60 of that Act (Joseph at [68]).

Summary dismissal

93. Wallaroo submitted that in the event that the Court dismisses the amendment application – which it has – the Court ought to summarily dismiss the Class 4 proceedings pursuant to r 13.4 of the UCPR because the summons only seeks relief in respect of the IPC decision and absent amendment of the summons, the Class 4 proceedings are inutile. Put other way, no reasonable cause of action is disclosed in the summons (see r 13.4(1)(b) of the UCPR) by reason of the application of s 8.14(2) of the EPAA and s 39(5) of the LEC Act.

94. Wallaroo argued that as a consequence of s 8.14(2) of the EPAA and s 39(5) of the LEC Act, the decision of the Court in a Class 1 appeal, including a s 56A appeal, is deemed, where appropriate to be the final decision of the entity whose decision is the subject of the appeal, namely, the IPC, and shall be given effect to accordingly. In other words, the Commissioner’s decision granting consent effectively replaced the IPC decision, and therefore, there is nothing left to review in the Class 4 proceedings.

95. In my opinion, until such time as the s 56A appeal is determined, it is premature to summarily dismiss the Class 4 proceedings.

96. I do not consider the reasons given by Faulks and Roso as to why it is still possible or necessary to challenge the IPC decision in the Class 4 proceedings to be wholly misconceived. Although unlikely, the possibility nevertheless remains that Faulks and Roso could succeed in their s 56A appeal and the Commissioner’s decision is set aside, but they subsequently discontinue the Class 1 proceedings prior to the redetermination occurring. This would, contrary to the submission of Wallaroo, have the effect of reviving the IPC decision, which would then be amenable to review in the Class 4 proceedings. That the IPC decision continues to operate in these circumstances finds expression in s 8.13(1) of the EPAA, which expressly preserves development consents for an SSDA that are the subject of an appeal. Section 8.13(2) of the EPAA reinforces this conclusion. Indeed, there may be considerable forensic advantage in pursuing this course of action, as Faulks and Roso indicated to the Court (T41:35). However, if Faulks and Roso were not permitted to maintain the Class 4 challenge, they would be foreclosed from challenging the IPC decision because any challenge to the IPC’s decision must be commenced within three months from the date on which public notice of the decision was given (s 4.59 of the EPAA).

The Class 4 proceedings should not be struck out

97. Assuming for present purposes that the Court allowed the amendment application, Wallaroo submitted that the Court ought to strike out those parts of the amended summons relating to the IPC decision (that is, prayers 1 and 2 of the relief sought, paragraphs 1 to 3 of the details of the decision, and grounds 1 to 7) pursuant to either r 14.28(1)(a) or r 14.28(1)(b) of the UCPR. It repeated the arguments made by it as to why the IPC decision can no longer be subject to judicial review and concluded that in these circumstances, the amended summons disclosed no reasonable cause of action and had a tendency to embarrass.

98. Because the amended application has been dismissed, it is not necessary to determine whether or not the Class 4 proceedings ought to be struck out in whole or in part.

Costs

99. In the exercise of my discretion to award costs, no reason was proffered as to why costs should not follow the event (see r 42.1 of the UCPR) in respect of the two notices of motion that were filed in the Class 4 judicial review proceedings.

100. It follows that in conformity with the reasons given above, Faulks and Roso ought to pay 75% of the costs of the amendment application. The costs are apportioned in this manner because while Faulks and Roso were not successful in amending their summons - which occupied the majority of this notice of motion - they nevertheless obtained the relief sought in order 2 of the amendment application, namely, that the Class 4 and s 56A appeal proceedings be heard and determined together.

101. Wallaroo is to pay Faulks’s and Roso’s costs of the dismissal application.

102. In relation to the joint hearing application filed in the s 56A appeal, this notice of motion is subject to r 3.7(2) of the Land and Environment Court Rules 2007 (see r 3.7(1) of those Rules). That rule provides that the Court is not to make an order for the payment of costs unless the Court considers the making of the order to be fair and reasonable in the circumstances. Although not exhaustive, none of the circumstances set out in r 3.7(3) of the Rules apply. There being no other disentitling conduct that would make it fair and reasonable to award costs to a party, each party are to bear their own costs of the joint hearing application filed in the Class 1 proceedings.

Orders

103. The orders of the Court are therefore that:

In proceedings 2024/00460824 (Class 4)

1. the Court refuses leave to amend the summons as sought in order 1 of the notice of motion filed on 2 March 2026 by the applicants;
2. the Court makes an order in accordance with order 2 of the notice of motion filed on 2 March 2026, and proceedings 2024/00460824 and 2026/00079109 are to travel together and to be heard and determined concurrently;
3. the applicants are to pay 75% of the respondents’ costs of the notice of motion filed on 2 March 2026;
4. the notice of motion filed on 10 March 2026 by the second respondent is dismissed;
5. the second respondent is to pay the applicants’ costs of the motion filed on 10 March 2026;

In proceedings 2026/00079109 (Class 1)

1. the notice of motion filed on 26 March 2026 by the applicants is upheld and proceedings 2024/00460824 and 2026/00079109 are to travel together and to be heard and determined concurrently;
2. each party is to bear their own costs of the motion; and

In proceedings 2026/00079109 (Class 1) and 2024/00460824 (Class 4)

1. both sets of proceedings are listed before the List Judge on 18 September 2026 for further directions.

**********

Amendments

09 September 2026

Coversheet - corrected case name and representation.