The plaintiff, JK Williams Staff Pty Ltd, applies for an order under s 149B(2) of the Civil Procedure Act 2005 (NSW) (CPA) for an order that these proceedings be transferred to the Land and Environment Court (LEC) to be heard together with other proceedings commenced by the plaintiff against the defendant in that Court. The defendant, Sydney Water Corporation, opposes that order being made.
Section 149B(2) of the CPA relevantly provides:
(2) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that:
(a) there are related proceedings pending in the other court, and
(b) it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court,
it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings.
If the order sought by the plaintiff is made, the proceedings in this Court will continue in the LEC as if they had been commenced in that Court and the LEC will have all of the jurisdiction of this Court in determining those proceedings: CPA ss 149D and 149E.
The parties agree that the two proceedings are related in the required sense, so the question is whether it is more appropriate for the proceedings in this Court to be heard in the LEC with the proceedings in that Court.
Briefly, the plaintiff is the registered proprietor and occupier of certain land at Penrith. Boundary Creek flows over substantial portions of the plaintiff's land before it finally discharges into the Nepean River.
The defendant is the owner and operator of the Penrith Sewage Treatment Plant (Penrith STP).
The plaintiff claims that, prior to the establishment and operation of the Penrith STP, Boundary Creek was an ephemeral stream, which remained frequently dry, without base flows, and which only flowed after receiving local rainfall of sufficient magnitude to cause it to flow over the surface without being absorbed and entering the groundwater.
The plaintiff alleges that, at all material times, the Penrith STP has processed untreated effluent and discharged treated sewage into Boundary Creek. From 2000 until the commencement of operation of the Western Sydney Recycled Water Initiative - Replacement Flows Project (RFP) in 2010, the defendant, according to the plaintiff, discharged around 23,000,000 litres per day of treated sewage from the Penrith STP into Boundary Creek.
The plaintiff alleges that, since the commencement of the RFP in 2010, the defendant has discharged, and continues to discharge, around 60 to 70,000,000 litres per day, on average, of treated sewage into Boundary Creek, which includes treated sewage originally from St Mary's Advanced Water Treatment Plant.
The plaintiff claims that, by reason of the discharges of treated sewage from the Penrith STP, Boundary Creek has flowed continuously from the Penrith STP to the west. According to the plaintiff, erosion in the Boundary Creek channel commenced in 2002, and the plaintiff took steps to try to persuade the defendant, which was the only party permitted to do so, to undertake stabilisation works in the Boundary Creek channel. Those works included the installation of a pipeline from the Penrith STP discharge point in Boundary Creek to the Nepean River. The defendant declined to undertake the stabilisation works requested by the plaintiff.
The plaintiff alleges that erosion of Boundary Creek has caused the progressive collapse and loss of significant portions of the plaintiff's land into the Boundary Creek channel. Those collapses are allegedly progressively approaching and threatening buildings constructed by the plaintiff on the plaintiff's land with collapse.
Specifically, the plaintiff alleges that an expert hydrologist, appointed jointly by the parties, has concluded that 90% of the water flow and water velocity in Boundary Creek is due to the defendant's discharges from Penrith STP. The plaintiff further alleges that the defendant has failed or refused to undertake such work as is necessary to remediate the Boundary Creek erosion and prevent its recurrence.
The plaintiff commenced the proceedings in this Court by summons filed on 28 June 2017. It filed a statement of claim on 25 August 2017. The primary relief sought by the plaintiff was:
1. An order that the Defendant forthwith do all such things, and perform all such acts, as are necessary to prevent further damage to the land owned by the Plaintiff… Penrith…caused by the discharge of water from the Penrith Sewage Treatment Plant (Penrith STP) operated by the Defendant upon the land… Penrith…also owned by the Defendant (Penrith STP Land).
2. An order that the Defendant forthwith do all such things, and perform all such acts, as are necessary to abate the nuisance to the Plaintiff's Land caused by the discharge of water from the Penrith STP, including by repairing, making good and rectifying by appropriate works the damage to the Plaintiff's Land caused by the said discharge.
The plaintiff claimed damages in the alternative to prayers 1 and 2.
After pleading the facts in a manner consistently with the outline that I have given above, the plaintiff pleaded in par 14 that the discharges from the Penrith STP into Boundary Creek and the resulting Boundary Creek erosion were at all material times reasonably foreseeable and constituted a continuing nuisance to the plaintiff.
The plaintiff then pleaded that the defendant had failed and refused to abate or mitigate the nuisance notwithstanding requests to that effect by the plaintiff.
In the alternative, the plaintiff pleaded that the defendant owed to the plaintiff a duty of care under s 177 of the Conveyancing Act 1919 (NSW) not to do anything on or in relation to land that removes the support provided to any other land, and that the defendant's conduct was a breach of that duty, as a result of which the plaintiff had suffered loss and damage.
Section 177(1) of the Conveyancing Act establishes a duty of care in relation to the right of support for land for the purposes of the common law of negligence.
Notably, s 177(8) of the Conveyancing Act abolishes any right at common law to bring an action in nuisance in respect of the removal of the support provided by supporting land to supported land.
The defendant filed an amended defence on 31 October 2019. Among other matters, the defendant pleaded in par 6 that it was authorised and permitted to release quantities of recycled water from the Penrith STP into Boundary Creek pursuant to an approval granted by the Minister for Planning under s 75J of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA). The defendant also alleged that it was authorised and permitted to discharge a certain quantity of treated effluent into Boundary Creek from the Penrith STP, and to transfer recycled water from St Marys Advanced Water Treatment Plant to the Penrith STP, by licences issued under s 55 of the Protection of the Environment Operations Act 1997 (NSW) (PEOA).
The defendant also pleaded in par 20 that the plaintiff's alleged cause of action in nuisance had been abolished by s 177(8) of the Conveyancing Act.
The defendant relied upon s 43A of the Civil Liability Act 2002 (NSW), on the basis that it is a public authority exercising a special statutory power, so that its conduct does not give rise to civil liability, unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
This summary of the allegations in the amended defence is not complete, and the defendant contested many of the allegations of fact made by the plaintiff in its statement of claim.
It is not necessary for this Court to consider the issue in detail, but it is questionable that the Court has power to issue the mandatory injunction sought by the plaintiff in prayer 2 of its statement of claim to require the defendant to abate the alleged nuisance to the plaintiff's land by repairing, making good and rectifying by appropriate works the damage to the plaintiff's land caused by the defendant's conduct. In principle, the Court may issue an order in terms of prayer 1 restraining the defendant from continuing to cause damage to the plaintiff's land by nuisance. Of course, s 177(8) of the Conveyancing Act may have abolished the legal basis for the Court to issue any injunction.
The plaintiff filed a reply on 9 December 2019. Among other things, it made allegations to the effect that the defendant was subject to special objectives and obligations under certain environmental protection laws, and, in par 42, that, having regard to the environmental obligations of the defendant that were pleaded in the reply, no reasonable statutory authority in the position of the defendant would have failed or refused to undertake such work as was and is necessary to remediate the Boundary Creek erosion and prevent its recurrence.
As I understand it, the plaintiff has served the substance of the evidence upon which it will rely in these proceedings. On 11 February 2020, the Chief Judge in Equity granted the defendant further time to serve evidence.
It appears to have come to the attention of the plaintiff that it had an arguable case to seek relief against the defendant by way of the enforcement of a number of environmental protection laws, and that the remedies that may be available in the LEC may be more effective to protect the plaintiff's land from the effects of continuing erosion, by means of orders requiring the defendant to institute remedial action, then the relief that may be available in the proceedings in this Court. It may be that certain matters raised by the defendant in the amended defence turned the plaintiff's mind towards these alternative remedies.
On 17 December 2019, the plaintiff commenced proceedings in the LEC by filing a summons and points of claim. An amended summons and an amended points of claim were filed on about 14 February 2020. The defendant has filed points of defence in the LEC proceedings. Those proceedings have been stood over to 13 March 2020 to await the outcome of this motion, which was filed by the plaintiff in this Court on 18 December 2019, the day after the commencement of the LEC proceedings.
On 4 March 2020, two days before the hearing of the plaintiff's notice of motion by this Court, the defendant filed a notice of motion in the LEC seeking an order by that Court, under s 149B(2) of the CPA, that the LEC proceedings be transferred to this Court to be heard and determined together with the proceedings in this Court.
The Court was informed by counsel for the defendant that, if the Court dismissed the plaintiff's motion, and thus declined to transfer these proceedings to be LEC, the defendant would move on its motion to have the LEC proceedings transferred to this Court. The parties were agreed that, not only are the two proceedings relevantly related, but it is clear that both proceedings should be determined in the one court. Consequently, if the plaintiff's motion in this Court is dismissed, the only practical course available to the plaintiff would be to consent to the LEC making an order transferring the proceedings there to this Court. In practical terms, the LEC would be in a similar position, because, as it is obvious that the two proceedings must be determined by the one court, the LEC would have little choice but to make the order sought by the defendant.
As s 149B of the CPA requires that the transfer order must be made by the court in which the proceedings have been commenced, and not by the transferee court, it has fallen to this Court to decide the question, because it is the court in which the first notice of motion has come on for hearing. That raises questions of comity and courtesy as between this Court and the LEC, which is a court of equal standing to this Court.
The parties are agreed that the LEC proceedings are proceedings of the kind referred to in s 20(1)(e) of the Land and Environment Court Act 1979 (NSW) (LECA), as they are proceedings "to enforce any right, obligation or duty conferred or imposed by a planning or environmental law" within the meaning of that provision.
Consequently, s 71(1) of the LECA has the effect that the proceedings now before the LEC "may not be commenced or entertained in the Supreme Court".
Consequently, while s 149B(2) of the CPA may nonetheless empower the LEC to transfer the proceedings before it to this Court, the question of whether this Court should exercise the power in s 149B(2) of the CPA to transfer these proceedings to the LEC must be determined having regard to the legislative injunction that the proceedings in the LEC may generally not be entertained by this Court.
The following features of the LEC proceedings are, in my view, of particular significance to the exercise of the Court's discretion under s 149B(2) of the CPA.
Prayer 1(a) of the LEC amended summons seeks an order under s 9.46 of the EPAA that the defendant be restrained from breaching s 75D(2) of the EPAA by its failure to comply with the condition of approval imposed pursuant to s 75J of the EPAA on the approval of the RFP. That condition being that, throughout the operation of the RFP, no degradation of bed or bank instability would occur within Boundary Creek downstream of the Penrith STP as a result of the RFP.
Section 75D(2) of the LECA has the effect that the defendant is obliged to comply with any conditions to which any approval given by the Minister to the carrying out of the project constituted by the RFP is attached.
Section 9.46 of the EPAA relevantly provides:
9.46 Orders of the Court
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may -
(a) where the breach of this Act comprises a use of any building, work or land - restrain that use,
…
(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.
…
Thus, if the plaintiff succeeds in proving that a relevant condition of the Minister's approval of the RFP has been breached by the defendant, the LEC has, under s 9.46 of the EPAA, the power not only to make an order restraining the breach, but an order that the defendant remedy the breach. Such an order extends to requiring the reinstatement, so far as is practicable, of the land to the condition or state the land was in immediately before the breach was committed.
Accordingly, in prayer 1(b) of the amended summons, the plaintiff seeks an order that the defendant remedy the degradation of the bed and bank stability within Boundary Creek downstream of the Penrith STP including, without limitation, erosion caused to the plaintiff's land and other parts of Boundary Creek downstream of the Penrith STP.
Prayer 2 of the amended summons seeks orders pursuant to s 252(1) of the PEOA, which empowers the LEC to make an order restraining a breach of that Act, or an order that the person in breach remedy the breach. Subsection (7) empowers the LEC to suspend any environment protection license. Under s 142A of the PEOA, it is an offence for any person to pollute land.
Prayer 2 seeks orders restraining the defendant from breaching s 142A of the PEOA by polluting land by introducing up to 71,000,000 litres per day of treated sewage into Boundary Creek, causing degradation of bed and bank stability. It also seeks an order that the defendant remedy its pollution by rectifying erosion and damage caused to the plaintiff's land and other parts of Boundary Creek that are downstream of Penrith STP.
Prayer 3 seeks an order that the defendant's environment protection licences be suspended pursuant to s 252(7) of the PEOA.
Prayer 4 seeks an order, pursuant to s 253(1) of the PEOA, that the defendant be restrained from breaching ss 21, 22 and 41 of the Sydney Water Act 1994 (NSW) (SWA), s 6(1) of the Protection of the Environment Administration Act 1991 (NSW) (PEAA), and each of its operating licences issued under the SWA for the Penrith STP and the St Mary's Advanced Water Treatment Plant, which breaches are causing, and likely to continue to cause, harm to the environment. Those harms being erosion and degradation of bed and bank stability within Boundary Creek downstream of the Penrith STP.
Section 253 of the PEOA empowers the LEC to make orders restraining any breach of any other Act, or any statutory rule under any other Act, if the breach is causing or is likely to cause harm to the environment. Subsection (5) empowers the LEC to make an order suspending any environment protection licence.
Section 21(1)(b) of the SWA provides that one of the principal objectives of the defendant is to protect the environment. This is by conducting its operations in compliance with the principles of ecologically sustainable development contained in the PEAA. Section 22 of the SWA makes specific prescription as to how the defendant is required to implement its principal objectives. Section 41 of the SWA requires the defendant to do as little damage as practicable in exercising its functions, and to compensate all persons who suffer damage by the exercise of its functions. That compensation may be made by reinstatement, repair, and construction of works or payment.
Prayer 5 seeks an order under s 253(5) of the PEOA suspending the defendant's licences until it has complied with the orders sought in prayer 4.
The amended points of claim contain the allegations of fact needed to sustain the prayers for relief sought by the plaintiff. Those allegations include many technical allegations concerning the environmental protection framework under which the defendant operates, and factual assertions concerning the effect on Boundary Creek and the plaintiff's land as a result of the defendant's operations at the Penrith STP.
The amended points of claim includes the following allegations:
39. Since 2002, in breach of its Environmental Obligations the Defendant's discharge flows from the Penrith STP (including in particular since the commencement of the operation of the RFP in or around 2010) have caused, and continue to cause, erosion of the bed and embankments of Boundary Creek along the southern boundary of the Plaintiff's Land, resulting in steep, unstable and unsafe ground conditions and loss of land due to progressive embankment collapses (the Boundary Creek Erosion).
40. The Boundary Creek Erosion has caused the progressive collapse and loss of significant portions of the Plaintiff's Land into the Boundary Creek channel, which collapses are progressively approaching and threatening buildings constructed by the Plaintiff on the Plaintiff's Land with collapse.
…
45. In the circumstances pleaded at paragraphs 41 to 43, and having regard to the Defendant's Environmental Obligations, including the No Degradation Obligation and the precautionary principle pleaded in paragraph 9(b), no reasonable statutory authority in the position of the Defendant would have failed or refused to undertake such work as was and is necessary to remediate the Boundary Creek Erosion and prevent its recurrence.
The question for determination in the circumstances set out above is whether it is more appropriate for the proceedings in this Court to be heard together with the related proceedings in the LEC.
The parties appear to be in agreement that there is limited guidance in the case law as to when it will be "more appropriate" for proceedings to be heard in another court for the purposes of s 149B(2) of the CPA.
In Young v King [2016] NSWCA 282, Basten JA (with whom Gleeson JA agreed in this respect) stated as follows at [15]:
There are significant issues as to when it is "more appropriate" for the proceedings to be heard in the other court. Two factors to be considered are the nature of the proceedings and the relief sought…
In Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33, Pepper J stated as follows at [37]:
Logically, and having regard to the overriding purpose contained in s 56 of the CPA (as informed by ss 57-60 of that Act), the following factors are likely to be relevant, but few will be wholly determinative:
(a) whether an issue concerning the jurisdiction of either court to hear and dispose of the proceedings exists;
(b) whether either court has the power to grant the relief sought;
(c) whether one court is better placed to determine the issues raised by the proceedings, having regard to each court's expertise and skill;
(d) whether the transfer will result in a saving of time and cost to the parties;
(e) whether the transfer will result in in a more efficient allocation of judicial resources; and
(f) whether in all the circumstances the transfer is just.
In the present case, neither party suggested that there would be any procedural advantage, in the sense of any saving of cost and time, and the expeditious completion of the two proceedings, through the proceedings being heard in one court rather than the other. Consequently, par (d) of Pepper J's considerations is not engaged.
If either court makes an order transferring the proceedings before it to the other court, then the transferee court will have all of the power necessary to grant the relief sought by the plaintiff in each of the proceedings.
The question of whether it is more appropriate for proceedings in the Court to be transferred to be dealt with together with proceedings in the other Court will always depend upon all of the circumstances of each of the proceedings, and in particular, the extent to which they are related in practical terms.
It is not necessary in this case for the Court to embark upon a conceptual analysis of what is involved in the idea of a transfer being more appropriate than the refusal of the transfer.
That is because, in the present case, the related nature of the two proceedings is accepted by the parties and obvious, and it is equally obvious that both of the proceedings should be heard together in one Court or the other. As I have said, there is no suggestion of procedural advantage in either Court.
Consequently, the issue whether or not it will be more appropriate for the proceedings in this Court to be transferred to the LEC to be heard together with the LEC proceedings may come down to a fine balance, in that this Court must make its judgment on a broad consideration of where the two proceedings most appropriately should be decided.
I have concluded that the order sought by the plaintiff should be made, as it is more appropriate for the proceedings in this Court to be transferred to the LEC than for the reverse transfer to be made by the LEC for the following reasons.
First, in my judgment, the outcome of the dispute is more likely to be determined on the basis of the application of the various environmental protection laws raised in the LEC proceedings than it is by the tort actions commenced in this Court.
I give weight to the fact that the LEC is a specialist court with great expertise in determining disputes based upon the application of environmental protection laws. Although the LEC appears to have power under s 149B(2) of the CPA to transfer the proceedings before it to this Court, I consider that the injunction in s 71(1) of the LECA, that the proceedings in the LEC "may not be commenced or entertained in the Supreme Court", is a powerful justification for this Court to transfer the tort claims made in these proceedings to the LEC. It also avoids the need for the LEC to transfer to this Court the existing proceedings before it that fall within the LEC's specialist jurisdiction.
I do not accept the argument put by the defendant that, in respect of the tort claims, this Court is as much a specialist court as the LEC is in respect of the environmental protection law issues raised by the proceedings in that Court. This Court is not the only court with jurisdiction to determine common law claims.
Secondly, the preponderance of issues raised in the two proceedings, in respect of complexity and expertise, are the issues raised in the LEC proceedings, rather than the tort claims raised in the proceedings in this Court. With respect to the judges of the LEC, I am quite satisfied that, as a matter of judicial convenience, it would be more appropriate for judges of the LEC to have to deal with the tort claims, rather than judges of the Equity Division of this Court having to deal with the environmental protection law claims. I base this conclusion in part on my judgment that experience in dealing with the environmental protection law claims in this matter will be important to the just determination of the dispute.
Thirdly, and most significantly, in my judgment, if the plaintiff succeeds in establishing the basis of its complaint in the two proceedings, it is unlikely that the most effective and appropriate remedy will lie in damages or the granting of injunctions. The remediation of the erosion and damage of which the plaintiff complains, whether by order under s 9.46 of the EPAA or s 252 of the PEOA, is likely to be the most effective remedy. The framing of such a remedy is likely itself to involve a consideration of the application of relevant environmental protection laws to the needs of the case, and, probably as well, an element of ongoing supervision by the Court. Consequently, I consider that, not only is the LEC the most appropriate court to determine whether the plaintiff is entitled to the relief that it seeks, but it is, by reason of its experience and expertise, likely to be the most appropriate court to frame and supervise appropriate remediation orders, if the plaintiff succeeds. The supervision of such relief is not a function that is frequently performed in this Court and this Court's procedures do not make such supervision convenient.
For the foregoing reasons, I make the following order as sought by the plaintiff in its notice of motion: order that, pursuant to section 149B(2) of the Civil Procedure Act 2005 (NSW), these proceedings be transferred to the Land and Environment Court to be heard and determined together with Land and Environment Court Proceedings No 2019/296280.
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Decision last updated: 12 March 2020