Hill Top Residents Action Group Inc v Minister for Planning

KEY ISSUES: PRACTICE AND PROCEDURE :- whether application to amend made during the hearing to claim further or alternative relief should be granted - principles of case management

Civil Procedure Act 2005, ss 56 - 61, 64 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 75G(1)(a), 75J, 75R State Environmental Planning Policy (Major Projects) 2005

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 CASES CITED: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Queensland v J L Holdings Pty Ltd [1997] HCA 1, (1997) 189 CLR 146

APPLICANT: Mr T Robertson SC SOLICITORS Environmental Defender's Office

FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr N J Williams SC SOLICITORS Department of Planning

SECOND RESPONDENT: Mr M R Hall, barrister SOLICITORS Crown Solicitor's Office (NSW)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

HILL TOP RESIDENTS ACTION GROUP INC v MINISTER FOR PLANNING & ANOR

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an application by the applicant for leave to amend the further amended summons by adding a further or alternative prayer that the second respondent be restrained from carrying out the project the subject of these proceedings. The second respondent opposes the application to amend. 2 Currently, the further amended summons claims a declaration that a major project approval for the carrying out of the Southern Highlands Regional Shooting Complex purportedly granted by the first respondent, the Minister for Planning, on 26 February 2009 under s 75J of the Environmental Planning and Assessment Act 1979 is void and of no effect by virtue of Part 33 of Schedule 3 of the State Environmental Planning Policy (Major Projects) 2005 and s 75R of the Environmental Planning and Assessment Act 1979 (EPA Act), a declaration that the approval is void and of effect by virtue of ss 75G(1)(a) and 75J(2)(a) of the EPA Act, an order quashing the approval, an order that the respondents pay the plaintiff's costs of the proceedings, and such further or other orders as the Court thinks fit. . 3 The applicant has explained that the amendment application is responsive to a submission by the second respondent on 6 August 2009, the second day of the hearing, to the effect that it is a complete answer to the claim that under s 75R(2) a relevant state environmental planning policy does not apply to such an approval but is limited in its application to the declaration of a project as a project to which Part 3A applies or to the carrying out of that project. That submission did not appear in the second respondent's first set of submissions filed on 4 August 2009, the day preceding the commencement of the hearing. The first respondent (the Minister) neither supports nor opposes the submission.

4 After the hearing had proceeded for two days, 5 and 6 August, it then had to be stood over to today for a third day of hearing. In accordance with a direction of the Court, the applicant filed further submissions on 10 August 2009 in which in paragraph 34 it submitted that if the second respondent is right in its submission, then the Court should grant injunctive relief against the second respondent carrying out the project but not declare the project approval by the first respondent invalid. The applicant has expressed concern that if the amendment is not allowed, there may be an Anshun estoppel against the applicant claiming such relief in subsequent proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

5 It has been made clear, if it was not already clear, by the second respondent today that, unless the applicant is successful in the proceedings, the second respondent will proceed to carry out the project.

6 The second respondent makes the following submissions in opposition to the application to amend: (a) the amendment application was not brought forward at the earliest available time, the approval having been in force for some months;

(b) there was a deliberate tactical move by the applicant to limit the proceedings to a declaration of invalidity of the approval, that this is an attempt to re-cast the case at five minutes to midnight, and it is not in truth in response to the second respondent's submission;

(c) the amendment application should be refused in light of the principles in the recent High Court decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (d) there will be prejudice to the second respondent if this amendment were to be allowed because if any such injunction were to be granted it would result in a freezing of any works which the second respondent might otherwise proceed to carry out in respect of this project;

(e) the second respondent makes no concession in relation to whether or not an Anshun estoppel would arise but comments that it would be a remarkable application of such an estoppel;

(f) until there has been some carrying out of the project the Court does not know what form the state environmental planning policy might ultimately take because s 75R(3)(a) empowers the Minister to amend an environmental planning instrument to authorise the carrying out of certain development. The argument, as I understand it, is that if the amendment is refused and the applicant fails in these proceedings as presently constituted but subsequently brings a further action claiming the proposed injunction, then the form of the state environmental planning policy may then be different because of an amendment. 7 Section 64(1) and (2) of the Civil Procedure Act 2005 provides that at any stage of the proceedings the court may amend or grant leave to amend a document, and that all necessary amendments are to be made for the purpose of (among other things) determining the real questions raised by the proceedings and avoiding multiplicity of proceedings. 8 Aon (above) was decided in the context of modern case management provisions applicable to civil proceedings in legislation or rules of court now found in a number of Australian jurisdictions. In New South Wales these provisions are mainly found in ss 56 to 61 of the Civil Procedure Act 2005. Section 56 provides that the overriding purpose of the act and the rules of court in their application to civil proceedings is to facilitate "the just, quick and cheap resolution of the real issues in the proceedings" and that the court must seek to give effect to the overriding purpose when it exercises any power given to it by the act or rules of court. Section 57 provides that for the purpose of furthering the overriding purpose, proceedings are to be managed having regard to four objectives: the just determination of the proceedings, the efficient disposal of the court's business, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings and all other proceedings in the court at a cost affordable by the respective parties.

9 In Aon, the joint judgment held that given the requirements of similar provisions in the rules of court in the Australian Capital Territory, it is incumbent upon an applicant for amendment at trial "to tender an explanation as to why the matter was allowed to proceed to trial in its existing form"; there is no entitlement to amend a pleading subject to payment of costs by way of compensation; all matters relevant to the exercise of the discretion must 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 which suggest only a limited application of case management principles in the High Court's earlier decision in Queensland v J L Holdings Pty Ltd [1997] HCA 1, (1997) 189 CLR 146 should no longer be applied; and limits will be placed upon parties' ability to effect pleading changes, particularly if litigation is advanced: at [105], [111], [112]. The joint judgment commented that there was no difference in the separate judgment of the Chief Justice as to the principles which should now be applied in relation to applications for amendment: at [116]. 10 In the particular circumstances of this case. I think it is consistent with the statutory provisions and the principles discussed in Aon to grant the application for leave to amend. I accept the applicant's explanation that the amendment is responsive to an unanticipated statutory construction submission made by the second respondent on the second day of the hearing. The applicant responded with reasonable promptness, within days in written submissions, filed in accordance with a direction during the period in which the hearing had to be adjourned, foreshadowing a claim for the new injunctive relief in the event that the second respondent's submission were upheld. A multiplicity of proceedings should be avoided if that can be done without injustice to the second respondent; this would also avoid the risk of an Anshun estoppel if the injunction had to be claimed in subsequent proceedings. I cannot see that the amendment would cause any prejudice to the second respondent additional to that which would arise if the applicant were successful on the basis of the current claim. As to the second respondent's submission that the form of the state environmental policy might change by the time any such subsequent proceedings were brought, I do not think that I should look into that possibility. If the proposed amendment is allowed, the decision whether the new claim to relief should be granted will be on the basis of the law as it now stands.

11 In my view, there has been a reasonable explanation for this late application to amend; it will not cause delay, extra cost or prejudice; and the matters which the second respondent has raised are otherwise of insufficient weight to lead me to decline to grant the amendment application. 12 Accordingly, I grant the application for leave to amend the further amended summons by adding a prayer for an order to the effect that the second respondent be restrained from carrying out the project. Consistently with that course, and on the applicant's application, I also grant leave to the applicant to amend its amended points of claim to the effect that if the approval is not invalid then the carrying out of the project is unlawful. I direct the applicant to file the further amended summons and further amended points of claim by 10am tomorrow. I dispense with any requirement for the respondents to file further points of defence.

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