Goldcoral Pty Ltd v Richmond Valley Council

Factual and procedural background

1. Goldcoral lodged the development application on 27 October 2014. The development application in the form as determined by the Panel on 7 September 2022 was a concept development application, as provided for in Part 4, Division 4.4 of the EPA Act, for a two staged subdivision of the land: Stage 1 comprising subdivision; demolition of existing structures; and the carrying out of works including clearing, earthworks, roadworks, drainage, upgrading of Iron Gates Drive, and infrastructure and embellishment of proposed public reserves.
2. According to Council's statement of facts and contentions (Council's SOFAC) filed 30 November 2022, the development application was amended on four occasions, being 23 October 2015, 19 September 2019, 29 July 2020 and 26 July 2021.
3. On 7 September 2022, the development application was refused.
4. On 19 September 2022, Goldcoral commenced these Class 1 proceedings pursuant to s 8.7(1) of the EPA Act.
5. Council's SOFAC identified contentions in relation to the following matters: 1. flooding (contention 3); 2. biodiversity and vegetation clearance (contention 4); 3. impact on threatened species (contention 6); 4. groundwater (contention 8); 5. loss of biodiversity (contention 10); 6. loss of koala habitat (contention 12); 7. contamination (condition 14); 8. acid sulfate soils (contention 15); and 9. heritage conservation (contention 17).
6. On 1 February 2023, Goldcoral went into receivership and a receiver and manager was appointed. On 7 February 2023, the receiver and manager for Goldcoral engaged solicitors Corrs Chambers Westgarth to act for Goldcoral in these proceedings.
7. On 1 March 2023, the Court (Registrar Froh) made orders joining Ms Barker as second respondent in the proceedings.
8. On 6 March 2023, the parties participated in a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). Commissioner Chilcott terminated the conciliation conference upon no agreement being reached between the parties.
9. On 10 March 2023, Ms Barker filed a SOFAC (Ms Barker's SOFAC) stating as follows: 1. The Bandjalang Peoples enjoy the benefits of native title rights that are the subject of native title determinations in land and waters within the suburb of Evans Head, including land and waters nearby to the Site: Bandjalang People No 1 and No 2 v Attorney General of New South Wales [2013] FCA 1278. Those rights include: a. The right to hunt, fish and gather traditional natural resources; b. The right to take and use waters; c. The right to do the following activities on the land: i. Conduct ceremonies; ii. Teach the physical, cultural and spiritual attributes of places and areas of importance on or in the land and waters; and iii. Have access to, maintain and protect from physical harm, sites which are of significance to the Bandjalang People under their traditional laws and customs. … 4. The Second Respondent is a Bandjalang woman of the Bundjalung nation. She is a member of the Bandjalang Peoples who enjoy the benefits of the native title rights referred to in paragraph [1]. The Second Respondent is a person who holds traditional knowledge about the Site and the surrounding cultural landscape.
10. The contentions raised in Ms Barker's SOFAC relate to: 1. native title rights and interests; and 2. Aboriginal cultural heritage.
11. By affidavit affirmed 27 March 2023, Mr Max Alexander Somervaille Newman, solicitor for Goldcoral foreshadowed Goldcoral's intention to "prepare and file an application for leave to file amended plans in the proceedings". Mr Newman deposed that "[f]urther primary, including on-site, investigations and studies are required in order to respond to and address [Council's] contentions …".
12. On 13 April 2023, Deputy Registrar Orr made orders setting the matter down for a 10 day hearing to commence on Monday, 23 October 2023. The Deputy Registrar also ordered that Goldcoral "file an application for leave to amend the development…application by 8 June 2023".
13. On 8 June 2023, Goldcoral filed a notice of motion seeking leave pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) (2000 Regulations) to rely on amended plans and documents, as set out in Annexure A to the affidavits of Mr Newman, affirmed 13 June 2023, and other orders (the motion to amend): 1. Leave be granted to the Applicant to rely on the amended plans and documents as set out in Annexure A to the affidavits of Max Alexander Somervaille Newman affirmed on 8 June 2023 and 13 June 2023. 2. Leave be granted to the Applicant to file the following additional assessment reports in support of the amended application by 14 August 2023: a. Flood Report and Flood Emergency Response Plan; b. Groundwater Assessment Report; c. Acid Sulfate Soils Assessment; d. Detailed Site Investigation Report; and e. Detailed Radiological Contamination Investigation Report. 3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the First Respondent that are thrown away as a result of amending the development application. 4. Any further orders as the Court deems fit.
14. The amended plans and documents set out in Annexure A to the affidavits of Mr Newman affirmed 8 June 2023 and 13 June 2023 included a document prepared by Ethos Urban titled "Statement of Environmental Effects: Amended Development Application - Concept Proposal and Detailed Stage 1 Subdivision" dated 13 June 2023 and attaching appendices A through to R (the SEE). The SEE stated that the proposed amended development application would seek approval for the following: ● Concept Proposal for: - Indicative land uses. - Indicative layout of development, including development footprint. - Indicative dwelling typologies. - Protection of approximately 6 hectares of land for environmental conservation. - Key development principles and requirements for future development. ● Detailed proposal for the subdivision and construction of the Stage 1 Subdivision, including: - Demolition of existing buildings, roads, stormwater and sewage infrastructure present on the site. - Subdivision of the site into eight (8) Torrens Title lots, for the creation of the proposed Community Title subdivision footprint (1 lot), sewage pump station (1 lot), bioretention basins (5 lots), and residue land outside of the Community Title subdivision footprint (1 lot). - Further subdivision of the Community Title subdivision footprint (proposed Lot 801) into 127 lots under a Community Title Scheme, including 123 residential lots, one (1) lot for future multi-dwelling housing, two (2) residual lots for future (Stage 2) residential subdivision and one (1) community property lots comprising land for public recreation, environmental conservation and a Community Refuge Building. - Creation of Torrens Title lots for the proposed sewage pump station (1 lot), bioretention basins (5 lots), and residue land outside of the Community Title subdivision footprint (1 lot). - Construction of internal roads, stormwater, sewage and other utility infrastructure. - Vegetation management works, including vegetation removal and retention, environmental protection works, and ongoing environmental management. - Bulk earthworks to establish site levels and residential lots. - Establishment of a site for a Community Refuge Building for community use during severe bushfire and flooding events. - Upgrades to Iron Gates Drive, including road widening and reconstruction, and vegetation trimming.
15. In his affidavit affirmed 8 June 2023, Mr Newman also identified the following additional studies that were "ongoing" in response to Council's SOFAC: a. Acid Sulfate Soils Assessment - Contention 15; b. Detailed Radiological Contamination Investigation Report - Contention 14; c. Detailed Site Investigation Report - Contention 14; d. Groundwater Assessment Report - Contention 8(a); and e. Flood Study and accompanying Flood Emergency Response Plan - Contentions 3(a)-(c) and (d).
16. The motion to amend was heard before the Registrar on 16 June 2023, and on 18 and 27 July 2023. The Registrar delivered judgment on the motion on 18 September 2023: Goldcoral Pty Ltd v Richmond Valley Council [2023] NSWLEC 1540 (the Registrar's decision). The Registrar dismissed Goldcoral's motion to amend, concluding as follows: 17. In this matter, Applicant submits that my consideration of whether the proposed amendment is within my power should be guided by whether the proposed development remains the same in overall concept and that I should not adopt any approach that involves a quantitative assessment of the variations to determine whether they are substantial by using some empirical formula to ascertain the degree of change. 18. The Respondents disagree with this approach and direct me to Robson's J findings in Orico where his Honour details the elements of that proposal that were sought to be changed and the significant suite of further reports that were sought to be relied on. Despite his Honour finding that this was done by the Applicant in Orico so as to address some of the reasons for refusal and to achieve a better outcome, it was Robson J's view that, in the particular application before him, a "tipping point" had been reached such that the amendment sought constituted a new or fresh application. 19. In support of this, the Respondents set out the changes proposed, which they say illustrate the extent of change in the proposed amendment. These changes include: (1) There is now multi-dwelling housing lot whereas previously there was not; (2) The total area of residential subdivision has been reduced by over 2.2 hectares; (3) The area of the road reserve has reduced by close to 2 hectares; (4) By retaining a hill that was to have been levelled, the proposed earthworks are reduced by approximately: (a) 90,000 cubic metres of cut; and (b) 85,000 cubic metres of fill; (5) A community title subdivision is now proposed whereas previously there was not; and (6) Crown foreshore embellishment works were previously proposed and now they are not. 20. In The Next Generation Pty Limited v Independent Planning Commission [2020] NSWLEC 13 (The Next Generation), Moore J referred to Orico and adopted a similar approach to Robson J and examined very closely the relevant plans to comprehend the precise nature and scope of the changes. In that case, his Honour considered the changes to fuel composition, layout, the placement of a large building where previously there was none and the changes to the proposed built form shown on the elevations. 21. Ultimately, his Honour found that although the proposed amendment was ostensibly to reduce the scale and environmental impact of the overall development, the changes were, as a matter of fact, so different as to constitute a development for which a fresh application was required. 22. Although all parties in the matter before me appear to agree that the proposed amendment remains a subdivision, the question before me for determination is whether what Robson J refers to as the "tipping point" has been reached. 23. To assist me with this determination, the Applicant has provided me with numerous authorities where the Court has granted leave to amend development applications in similar factual circumstances as its proposed amendment. … 27. Although these decisions provide authority for elements of the proposed amendment, none are determinative, as I am required to consider the cumulative effect of the whole of the proposed amendment. Similarly, to The Next Generation, these amendments are responsive to the contentions that have been raised by the Respondents and are a reduction in scale. However, my view is that these changes which I have detailed earlier in my judgment are more than a minor matter of amendment and have pushed past the "tipping point". 28. Accordingly, I am satisfied that the proposed amendments are, as a matter of fact, so different as to constitute a new development application. There is no need to consider the jurisdictional issues posed by the Council or Ms Barker as to whether important and substantial discretionary matters are engaged. 29. The consequence is that I must refuse the application.
17. On 6 October 2023, Goldcoral filed the motion for review and the motion to vacate.

Relevant statutory provisions

1. Clause 55 of the 2000 Regulations provides as follows in relation to the procedure for amending a development application: 55 What is the procedure for amending a development application? (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development. (3) If the development application is for - (a) development for which concurrence is required, as referred to in section 4.13 of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.
2. Rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides as follows in relation to the review of a registrar's directions, certificates, orders, decisions and other acts: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. …

Motion to vacate

1. In its motion to vacate, Goldcoral seeks the following orders: 1. The hearing dates of 23 to 27 October, 30 to 31 October and 1 to 3 November 2023 are vacated. 2. The parties are given liberty to approach the Registrar via Online Court, within seven days of the delivery of the judgment on the review of the Registrar's decision made on 18 September 2023 in Goldcoral Pty Ltd v Richmond Valley Council [2023] NSWLEC 1540, to relist the proceedings for hearing. 3. Any further orders as the Court deems fit.
2. In his affidavit affirmed 6 October 2023, Mr Newman contends that the 10 day hearing set to commence on Monday, 23 October 2023 should be vacated for the following reasons: 1. Goldcoral did not receive judgment on its motion to amend until 18 September 2023, which was over 13 weeks after the date the motion to amend was initially listed for hearing on 16 June 2023. Had Goldcoral's motion to amend been heard and determined on 16 June 2023, or shortly thereafter, there would have been sufficient time to prepare for the hearing of the substantive proceedings. 2. No orders have been made for expert evidence to be adduced in the proceedings, which is reasonable in circumstances where Goldcoral's proposed amended development application was intended to narrow the issues in dispute by resolving as many of Council's and Ms Barker's contentions as possible. As such, no work has been done to prepare for the hearing including the commencement of joint expert conferencing or preparation of joint expert reports. 3. Following the Registrar's decision, Goldcoral considered its position and subsequently instructed its solicitors to seek a review of the Registrar's decision pursuant to r 49.19 of the UCPR. Rule 49.20 of the UCPR requires an application for review of a decision of a registrar to be commenced by filing a notice of motion within 28 days of the decision. Accordingly, Goldcoral had on 6 October 2023 filed a notice of motion seeking a review of the Registrar's decision.
3. Before me today, neither Council nor Ms Barker opposed the motion to vacate, subject to an award of costs thrown away, as agreed or assessed. It was common ground that no party had filed any expert evidence in the proceedings, and no joint conferencing had occurred.
4. I raised with the parties whether it might be more appropriate for the proceedings to be discontinued and a new development application lodged. Goldcoral was not amenable to such an approach, referring to the investment of a significant amount of time and money in the application before the Court, engaging experts who have recommended changes which they say produce a far improved environmental outcome, and responding to Council's contentions. Goldcoral (and Council) also referred to changes in the relevant planning controls since the development application was lodged in 2014. Council was agnostic in relation to whether a new development application should be lodged, and Ms Barker supported such an approach.
5. Notwithstanding the considerable inconvenience to the Court of vacating a hearing set down for 10 days, including for 3 days in Lismore, I acceded to the application to vacate in circumstances in which no expert evidence has been filed, and that it would be futile to embark upon a hearing in such circumstances. Accordingly, I made an order to that effect, and related orders.

Motion for review

1. In its motion for review, Goldcoral seeks the following orders: 1. Pursuant to r 49.19 of the UCPR, the Orders of the Registrar made on 18 September 2023 in Goldcoral Pty Ltd v Richmond Valley Council [2023] NSWLEC 1540 are set aside. 2. Leave be granted to the Applicant to amend the development application pursuant to cl 55 of the EP&A Regulation 2000 by relying on the amended plans and documents in "Exhibit MN-1" to the affidavit of Max Alexander Somervaille Newman affirmed on 13 June 2023. 3. Leave be granted to the Applicant to file the following additional assessment reports in support of the amended application: a. Flood Report and Flood Emergency Response Plan; b. Groundwater Assessment report; c. Acid Sulfate Soils Assessment; d. Detailed Site investigation Report; and e. Detailed Radiological Contamination Investigation Report. 4. Pursuant to s 8.15(3) of the EP&A Act 1979, the Applicant is to pay the costs of the First Respondent that are thrown away as a result of amending the development application. 5. Any further orders as the Court deems fit.
2. In support of the motion for review, Goldcoral filed an affidavit of Mr Newman affirmed 6 October 2023 in which Mr Newman deposes: 28. The amended DA was prepared in response to matters raised in both the First and Second Respondent's SOFAC, including the preparation of additional studies and reports which the First Respondent alleged were missing from the DA. It follows from the preparation of these additional studies and reports that the DA would need to be amended to align with the advice and recommendations of the Applicant's consultants, including new consultants that the Applicant engaged to respond to the First SOFAC. The amended DA was foreshadowed with the Respondents and the Court on several occasions… 29. I am informed by my instructing officer - Mr Matthew Hogg, Non-Executive Director at Banner Asset Management, who appointed the receiver and manager of the Applicant and is responsible for management of the proceedings on behalf of the Applicant - that it is neither feasible nor practical for the Applicant to continue the proceedings on the basis of the current DA, given advice the Applicant has received from the consultant team that prepared the proposed amended DA. In other words, the Applicant's experts do not support the current DA, but they do support the amended DA. 30. If leave is not granted to rely on the amended DA, I am instructed that the Applicant will discontinue the proceedings and pursue a new DA that is substantially the same as the proposed amended DA, with significant associated time delays and cost. 31. In my opinion, the Court should, in the interests of justice, exercise its discretion to set aside the decision of the Registrar made on 18 September 2023, as set out in the Judgment, as the amended DA will facilitate the just, quick and cheap resolution of the issues in dispute by: a. resolving several outstanding contentions, many of which alleged inadequate or insufficient information, which has now been prepared; b. improving the quality of the proposed development by substantially reducing environmental impacts, as identified in the documents comprising the amended DA; c. reducing the need for expert evidence due an [sic] anticipated reduction in contentions; and d. therefore, reducing the anticipated length of the hearing.
3. Mr Newman raised the following grounds for review of the Registrar's decision: 1. the Registrar's decision contains insufficient reasons and the decision was unreasonable; (Ground 1) and 2. at [27] of the reasons for the Registrar's decision, the Registrar did not correctly apply clause 55 of the 2000 Regulations, or in the alternative applied the wrong test, in making the decision (Ground 2).
4. In Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 (Groeneveld) at [11]-[14] the chief judge Preston J articulated the following principles in relation to the power of the Court pursuant to r 49.19 of the UCPR to review a registrar's decision citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (Tomko) at [8] to [9] (Hodgson JA, Ipp JA agreeing): 11. The power of the Court to review a registrar's decision and order is in Pt 49 r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW). The scope of the review is not an appeal and is not subject to the restrictions that apply to them: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [6], [10], [46], [50] and [52]. In a review, the Court must exercise its own discretion. This discretion extends to a discretion as to whether, and if so how, to intervene. There is an onus on a person seeking to have the Court set aside or vary a registrar's decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) at [6] and [10]. 12. What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights. In Tomko v Palasty (No 2) at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions: 8. In the case of a decision on practice of procedure, this will normally require at least demonstration of an error of law, or a House v The King [ (1936) 55 CLR 499] error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. 9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing. 13. Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and 52. 14. In this case, the decision and order of the Acting Registrar did impact on the party's rights; it imposed an obligation on the applicant to pay the costs of the respondent in terms of s 97B(2) of the Act and the respondent acquired a correlative right to be paid its costs. In reviewing such a decision, the Court may be more willing to intervene if it is satisfied that it is in the interest of justice to do so.
5. Prior to the hearing this morning, the only party who had filed written submissions in relation to the motion for review was Ms Barker who submitted in relation to Ground 1 that Goldcoral has not identified in its motion any specific aspect of the Registrar's decision said to be unreasonable. Accordingly, she submitted that this ground rises "no higher than a complaint that [Goldcoral] did not receive its desired outcome". Further, Ms Barker submitted, the Registrar's reasons are "manifestly adequate". Having given Goldcoral a "generous indulgence of time" to argue its motion to amend, the Registrar's reasons "leave no doubt as to why [Goldcoral] was refused permission". Ms Barker submitted that "[s]uccinct reasons do not make them inadequate" and that "it is abundantly clear from the Registrar's reasons the 'logic of the decision'". [1] That is, "considered in the round, the myriad changes to the development application can only lead to the conclusion that the amendments are so different as to constitute a new development application".
6. In relation to Ground 2 concerning the incorrect application of cl 55 of the EPA Regulations 2000, Ms Barker submitted that the Registrar's consideration of the totality of the amendments made by Goldcoral and their cumulative effect in assessing whether the development application is merely varied, or is so different as to constitute a new application (as set out in paragraph [27] of the Registrar's decision), "is the correct approach and exposes no error".
7. At 10.04am this morning, after the commencement off the hearing before me, the Court received 18 pages of written submissions from Goldcoral in support of its motion for review.
8. At the hearing, Goldcoral did not move on its motion for review, informing the Court, through its junior counsel, that the senior counsel briefed by it has COVID and would be available to appear in the motion for review on 29 November 2023. Senior counsel briefed by Council also has COVID and was unavailable to appear today.
9. Counsel for Ms Barker, who was ready to proceed, supported an adjournment of the hearing of the motion for review upon receipt of Goldcoral's written submissions which she had not had an opportunity to consider.
10. I indicated to the parties that I was unwilling to adjourn the hearing of the motion for review until 29 November 2023 merely to accommodate the convenience of senior counsel for Goldcoral. Further, in light of the questions to be determined in relation to a review of a registrar's decision as articulated in Groeneveld and Tomko, I consider that such questions ought be determined with the assistance of submissions and due consideration from the parties. The Court has availability to hear the motion on Friday, 27 October 2023; that is within the two week period that had been fixed for the hearing of the Class 1 appeal.
11. Accordingly, I made an order adjourning the hearing of the motion for review until Friday, 27 October 2023, and related orders.

Orders

1. The Court makes the following orders: 1. Hearing of the Class 1 appeal from the refusal on 7 September 2022 by the Northern Regional Planning Panel of concept development application DA 2015/0096 (the DA) set down for 10 days between 23 October 2023 and 3 November 2023 before Commissioner Dickson is vacated. 2. Applicant to pay the costs of the first and second respondents, as agreed or assessed, thrown away by reason of the vacation of the hearing set down between 23 October 2023 and 3 November 2023. 3. The applicant's motion filed 6 October 2023 seeking review pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) of the Registrar's decision made 18 September 2023 refusing the application seeking leave to amend the DA and otherwise dismissing the applicant's motion filed 8 June 2023 is set down for hearing on Friday, 27 October 2023. 4. The parties are to file and serve a written outline of submissions on the motion as follows: 1. applicant by 4pm on Monday, 23 October 2023; 2. respondents by 4pm on Wednesday, 25 October 2023; and 3. applicant in reply, if any, by 4pm on Thursday, 26 October 2023. 1. Parties to approach the Registrar, within two weeks of the delivery by the Court of a decision on the applicant's notice of motion to review the Registrar's decision, for allocation of hearing dates in the substantive Class 1 proceedings and for case management. 2. Liberty to restore on 24 hours' notice.

Endnote

1. Citing Telstra Corporation Ltd v Arden [1994] FCA 524; (1994) 20 AAR 285 (Burchett J) at [30] citing Dodds v Comcare Australia (1993) 31 ALD 690 at 691. 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: 17 October 2023