The Council Seeks to Dismiss Mr Goode's Class 1 Appeal
On 4 March 2019, the applicant, Mr David Goode, filed a Class 1 appeal in this Court from a Notice of Determination of Gwydir Shire Council ("the Council") on 14 January 2019, in respect of development application 13/2018 ("the DA") for a "Truck Wash Facility including dump points, amenities, internal access roads, parking bays, sludge pit, fencing, retention basin and wash down bays" ("the development").
The subject site is the land at Lot 7311 in Deposit Plan 1136470 ("the site"). The site is owned by the State of New South Wales.
On 2 March 2018, the Department of Primary Industry granted a licence to the Council to use the site for the purpose of:
…amenities building, concrete ramp, drain water, effluent disposal system, landscaping, parking area, road construction, settling ponds, tank, waste disposal.
On 18 April 2018, Council lodged the DA seeking approval to "construct and operate a truck wash facility".
The DA was expressly not lodged as a designated development.
The DA was exhibited, advertised and notified for a period of 21 days from 26 April to 16 May 2018, but not as designated development.
A notification letter was sent from the Council to residents dated 19 April 2018, erroneously stating that, "any person who makes a submission by way of objection, and who is dissatisfied with the determination of the consent authority to grant development may appeal to the Land and Environment Court".
Mr Goode accordingly lodged an objection to the DA.
On 10 January 2019, the Council completed its assessment of the DA. The DA was not assessed as designated development. The Development Assessment Checklist and Site Inspection Report marked "N" next to the question whether the proposal was classified as "designated" (that is, 'no').
Later, on 14 January 2019, when the Council issued its Notice of Determination approving the DA, the letter erroneously referred to an appeal right under s 8.8 of Environmental Planning and Assessment Act 1979 ("EPAA").
At the hearing of the Council's notice of motion seeking to discuss the proceedings, Mr Goode told the Court that he had complained to the Office of Local Government and the Ombudsman about the development but to no avail. Mr Goode also stated that he had attempted to obtain legal advice and/or representation but that he could not afford it. Mr Goode is, by his own admission, not a man of means.
On 4 March 2019, Mr Goode lodged a Class 1 appeal in the Court seeking that the development and all associated works cease.
Mr Goode's principal complaints about the development (these were set out in detail in an eight page written submission, together with a bundle of accompanying documentation tendered to the Court) concern:
1. the volume of water that the development will utilise, especially in circumstances where Warialda (where it is to be located) is subject to ongoing water restrictions;
2. that as a consequence, Warialda will have multiple sewage settling ponds thereby impacting the amenity of the town;
3. the capacity of the town's sewage treatment plant to accommodate the development;
4. the "dangerous" slope of the truck wash down area which, in his opinion, constitutes a occupational health and safety issue;
5. an increased likelihood of Q Fever from bacteria associated with cattle effluent;
6. a lack of adequate consultation with the community about the proposed development; and
7. a possible conflict of interest in circumstances where he believed that the Council was both the owner of the truck wash facility and the consent authority.
[2]
Designated Development
Designated development is development declared to be designated development by an environmental planning instrument of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations").
Part 1 of Sch 3 of the EPA Regulations declares various types of development to be designated development. The approved development did not fit the description of any of the types of designated development in Pt 1 Sch 3 of the EPA Regulation.
The Gwydir Local Environmental Plan 2013 did not declare any development to be designated development. And, as stated above, the DA was neither lodged nor assessed as designated development.
[3]
Mr Goode Does Not Have a Right of Appeal in Class 1 of the Court's Jurisdiction
Because, to reiterate, Mr Goode was not the applicant to the DA, but was merely a resident who lodged an objection to it, this does not afford him a statutory right of appeal in Class 1 of the Court's jurisdiction.
Sections 8.7 and 8.8 of the EPAA state as follows:
8.7 Appeal by applicant - applications for development consent
(1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.
(2) For the purposes of this section, the determination of an application by a consent authority includes:
(a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or
(b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.
(3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.
8.8 Appeal by an objector - designated development applications
(1) This section applies to the determination of an application for development consent for designated development (including any State significant development that would be designated development but for section 4.10 (2)), being a determination to grant development consent, either unconditionally or subject to conditions.
(2) A person who duly made a submission by way of objection during the public exhibition of the application for development consent (an objector) and who is dissatisfied with the determination of the consent authority to grant consent may appeal to the Court against the determination.
As the evidence before the Court demonstrated, the DA did not seek approval for a designated development and was not approved as such.
Therefore, notwithstanding the content of the two misleading and plainly incorrect letters from the Council referred to above, the Court does not have jurisdiction to make the orders sought in Mr Goode's Class 1 application.
Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 ("UCPR") provides 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.
Additionally, s 31 of the Land and Environment Court Act 1979 ("the LEC Act") states as follows (emphasis added):
31 Irregularity of proceedings
(1) This section applies if the Court determines, on application by a party or of its own motion, that any proceedings before it are not being dealt with in the manner appropriate to the class of jurisdiction to which they belong.
(2) In the circumstances referred to in subsection (1), the Court may make either of the following orders on such terms as may be necessary:
(a) an order that the proceedings be dismissed,
(b) an order that the proceedings be dealt with in the appropriate manner.
(3) If the Court makes an order referred to in subsection (2) (b):
(a) the proceedings are taken to have been duly commenced, and
(b) any step that has been taken in the proceedings is deemed to have been duly taken.
(4) The Court may make such orders as it thinks fit for the future conduct of the proceedings.
The Council relied on both r 13.4(1)(a)-(c) of the UCPR and s 31(2)(a) of the LEC Act as a basis for dismissing Mr Goode's application.
Based on the matters contained in Mr Goode's Class 1 application, and the material and submissions presented by him to the Court on the notice of motion, I do not consider that his application is frivolous, vexatious or an abuse of process. However, it does disclose no reasonable cause of action because Mr Goode had no right of appeal to the Court in Class 1 of its jurisdiction.
Thus, in addition to the power contained in r 13.4(1)(b) of the UCPR, the Court also has power under s 31(2)(a) of the LEC Act to dismiss the proceedings (Cachia v Parramatta City Council [2018] NSWLEC 78 at [33]). Having regard to the matters contained in s 56 of the Civil Procedure Act 2005, this is the appropriate, if not the only (subject to the discussion below), course of action the Court can take.
[4]
Mr Goode May Be Able to Seek Judicial Review of the Council's Determination in Class 4 of the Court's Jurisdiction
Mr Goode unquestionably had a right to seek judicial review of the determination by the Council of the DA in Class 4 of the Court's jurisdiction.
However, r 59.10 of the UCPR states that such proceedings must be commenced within three months of the date of the Council's determination of the DA (emphasis added):
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
Given that the date of the determination of the DA was 14 January 2019, Mr Goode is technically out of time to commence Class 4 proceedings challenging the development.
Mr Goode can seek an extension of time to commence Class 4 proceedings. Given that he was misled by the Council as to his appeal rights; did not delay in commencing the Class 1 appeal; and attempted to obtain legal advice, it may be that the Court would look favourably upon such an application. Furthermore, given the Council's role in causing the delay, it must be presumed that the Council would not oppose any such application.
But, as explained to Mr Goode, unlike matters in Class 1 of the Court's jurisdiction (see below), in Class 4 proceedings costs usually follow the event, and therefore, Mr Goode would be at risk of an adverse costs order. Mr Goode expressly stated to the Court that given that he was "already concerned about costs" this was a risk that "he did not want to run".
Accordingly, while the Court appears to have the power under s 31 of the LEC Act to assign the Class 1 proceedings to Class 4 (Fullerton Cove Residents Action Group Inc v Dart Energy (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [72] and Australia and New Zealand Banking Group Ltd v Apollo Valley Pty Ltd [2013] NSWLEC 108 at [15]) and to make consequential orders (such as the filing of a summons) - thereby avoiding the issue that the Class 4 proceedings are out of time (they would not be, having been deemed to have been filed on 4 March 2019) - this is not an order the Court is prepared to countenance. It was not sought by Mr Goode and it would subject him to a potential costs liability in circumstances where, as explained below, he presently has none.
However, if Mr Goode does want to commence Class 4 proceedings, he should do so immediately, but in the full knowledge that costs are likely to follow the event if he is unsuccessful.
[5]
No Order as to Costs
As the Council correctly submitted, pursuant to r 3.7(2) of the Land and Environment Rules 2007 ("the LEC Rules") the usual position in relation to costs in Class 1 matters is that each party bears their own costs unless the making of a contrary order is fair and reasonable in the circumstances.
It is the case that on 4 April 2019, the Council wrote to Mr Goode and indicated to him that, for the reasons explained above, the Court could not entertain his Class 1 appeal. However, given that Mr Goode is not legally qualified, it may be inferred that he did not understand the contents of the letter, and some latitude must, in any event, be afforded to him by reason of his unrepresented status.
In circumstances where the principal reason why Mr Goode commenced these proceedings is because on no less than two occasions the Council incorrectly indicated that he had a right to do so, it was somewhat astonishing that initially the Council sought the payment of its costs of the motion and of the proceedings. Subsequently, the Council sensibly withdrew its request for costs at the hearing.
[6]
Orders
For the reasons given above, order 1 sought in the Council's Notice of Motion should be acceded to and Mr Goode's Class 1 application must be dismissed.
The formal orders of the Court are therefore:
1. the applicant's Class 1 proceedings filed on 4 March 2019 are dismissed; and
2. the exhibits are to be returned.
[7]
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Decision last updated: 28 May 2019