Kennedy v Stockland Development Pty Ltd & Anor

Land and Environment Court (NSW)|2011-02-18|Before: Pain J

Judgment 1The First Respondent was granted major project approval for a residential subdivision at Sandon Point, Bulli on 29 November 2009 by the Second Respondent. The Applicant represented by an agent, Mr Oshlack, is challenging compliance with various conditions of that approval in Class 4 proceedings. The matter is presently set down for hearing at the end of March 2011. The parties have filed three Notices of Motion which were heard together. Two are dealt with in this judgment. The difficulty of getting the matter ready for hearing was raised with the parties at the hearing as likely to necessitate a postponement of the hearing dates.

Applicant's Notice of Motion seeking leave to rely on Amended Points of Claim (APOC) 2Section 64 of the Civil Procedure Act 2005 (the CP Act) provides that a court may order the amendment of any document in the proceedings at any stage, subject to s 58, in order to enable the real issues in dispute to be raised. The Court has discretion whether to allow any amendment to pleadings, taking into account matters such as the timing of the application and the nature of the amendment sought. Here the application is made close to the hearing date and involves substantive changes in the APOC. But for the necessity to postpone hearing dates because the matter is not otherwise able to proceed (referred to later in the judgment in relation to preparation of evidence) the application is likely to have been refused given the prejudice to the First Respondent. It is also relevant to note that under the Uniform Civil Procedure Rules 2005 (UCPR) r 14.7 pleadings are to contain a summary of the material facts on which the party relies, not the evidence by which those facts are to be proved. 3The Notice of Motion seeking leave to rely on the APOC was filed with leave by the Applicant's agent in Court on 2 February 2011. No affidavit to support the substance of the amendments sought was filed. Consequently the documents which the Applicant's agent sought to rely on in the course of argument were not identified to the First Respondent until submissions, an unsatisfactory circumstance. The documents referred to by the Applicant's agent Mr Oshlack were marked MFI 1. An affidavit of Mr Braithwaite dated 24 November 2010 read in an earlier interlocutory hearing attached the relevant conditions of approval and these were referred to.

Condition B31 - further particular 4B31 of the approval states "[t]he design of the development shall ensure that there are no adverse effects to adjoining properties or upon the land as a result of flood or stormwater run-off. Adequate protection must be provided for buildings against the ingress of surface run-off." 5A further particular is sought to be added that "[t]he First Respondent has failed to ensure or undertaken any hydrological or environmental assessment which considered ..." at par 38(ii) of the APOC. 6The Applicant's agent stated that he would bring forward evidence from neighbouring areas to say that no study of flood effects was known to them. The First Respondent's counsel stated that B31 does not require a hydrological or environmental assessment so that the particular lacked utility and was prejudicial given the imminent hearing date at the end of March. No basis for the particular had been established. 7The Applicant already alleges that there is evidence of flooding effects on neighbouring land as a result of the approved development in par 38(i) in the APOC. In my view the particular as drafted does not refer to a requirement in B31 as that condition does not specify that a hydrological or environmental assessment be done in relation to adverse flooding effects. The conditions must be applied as drafted and cannot be effectively rewritten to enable this particular. The First Respondent's submissions are correct. The particular cannot arise from the terms of B31, is futile and cannot be allowed.

Conditions B45/B46 - further particular 8As set out in the APOC the Applicant wishes to amend par 41(i) and add par 41(ii). The Applicant has evidence it wishes to bring forward to demonstrate that this condition has been breached. Reference was made to a document which the First Respondent had no notice of and was unable to respond to. It argued it was prejudiced in these circumstances. I did not therefore allow its formal tender by the Applicant. On the basis that a later hearing date will be set for this matter and the amended par 41(i) and par 41(ii) appears to arise from the terms of condition B45 in particular I will allow this amendment subject to the prompt provision of the material facts to be relied on, as required by r 14.7. There will be sufficient time before a rescheduled hearing to enable the First Respondent to clarify its position in relation to the documents the Applicant will seek to rely on.

Conditions B9(h) and B11(1)(2) - new ground 9Condition B9 provides: A final geotechnical report, prepared by a suitably qualified and experienced geotechnical engineer, is to be submitted to the Principle Certifying Authority (CA) prior to the issue of the Construction Certificate. The report must cover, but not be limited to the following: ... h) Details of further geotechnical investigations for contaminants where excavation is proposed to exceed 2m in depth ... 10Condition B11 provides: (1) Prior to the issue of a Construction Certificate, the Proponent shall submit to the CA a Remedial Action Plan and a Hazardous Materials Survey. The Remedial Action Plan must be accompanied by a statement from a site auditor accredited by the DECC to issue site audit statements. (2) Upon completion of the remediation works on the site, the Proponent shall submit a detailed Site Audit Summary Report and Site Audit Statement and Validation Report to the PCA. The site audit must be prepared in accordance with the Contaminated Land Management Act 1997 and completed by a site auditor accredited by the DECC to issue site audit statements. The site audit must verify that the land is suitable for the proposed uses. 11The new ground as pleaded in the APOC at par 41A and par 41B links conditions B9(h) and B11(1) and (2) as set out on p 7. The Applicant's agent submitted that contamination occurred when excavation by the First Respondent was greater than 2m and therefore B9(h) required further geotechnical investigations to be carried out. Apart from assertions from the bar table that excavation had been greater than 2m no particular facts supporting this submission were identified. No material facts are contained in the particulars relating to B9(h). 12The First Respondent's counsel submitted that the amendments sought are very late given the imminent hearing and were prejudicial for that reason. Further, the amendment was futile as the new ground impermissibly links B9(h) and B11. The final line of the proposed ground on p 7 of the APOC states that there has been a failure to provide a site audit assessment or remediation plan where there has been excavation of greater than 2m. Conditions B11 clearly stands separately from B9 and is headed "Remediation". There is no basis established for the particularised breach of B11 in the context of B9(h). 13In my view, the First Respondent's submission on the construction of B9(h) and B11 is correct as is clear from the terms of the conditions. They are not linked contrary to the manner in which the new ground and particulars are drafted. 14Paragraph 41A of the APOC alleges a breach of B9(h) by failing to provide geotechnical investigations where excavations exceeded 2m. While that particular reflects the wording of B9(h) no material facts to be relied on to establish the alleged particular is found in the APOC as required by r 14.7. Material facts to support this particular must be provided if it is to be maintained as a separate ground in the APOC. 15The new ground par 41B can stand as a separate ground as particularised but for the last sentence, "[t]he First Respondent has excavated into areas at depths greater than 2 metres where no site audit assessment or remediation action plans have been prepared or implemented." That allegation cannot arise from any alleged breach of B11(1) and (2) given the terms of B11. The new ground should appear as par 42 as it is separate from an alleged breach of B9(h). 16A sentence at the top of p 8 of the APOC states "[a]t the time of the injunction only 2 soil samples had been undertaken showing the presence of PAR contamination". It is unclear what that sentence relates to and the Applicant must clarify this if it is to remain in the pleading. 17The Applicant submitted generally that if the amendments were not permitted separate proceedings would be necessary in order for all issues between the parties to be determined. I have ruled that not all the amendments are permissible for the substantive reasons stated above. The substance of the amendments sought have been considered by me in this judgment. My finding is determinative of whether and how these issues can be raised. There is no basis for commencing fresh proceedings on the issues the subject of this motion to amend.

Applicant's Notice of Motion seeking leave for access for surveyor 18The Applicant filed a Notice of Motion on 24 January 2011seeking leave for access to the First Respondent's land for a surveyor and an order extending time for the filing of evidence. An affidavit in support sworn by Mr Alan Oshlack on 22 January 2011 identifies why there was delay in filing evidence by the Applicant. It was clarified in submissions that the area of land to which access is sought is Lot 2 DP 595488 (AIR land owned by Stockland) and Part Lot 1 DP 204631 (owned by Wollongong City Council). The AIR land is where access is sought to measure the area excavated in relation an alleged breach of a 5 ha margin area in condition B13(2) (par 35 APOC) and the Wollongong City Council land is argued to be outside the concept approval plan area (par 31 - 33 APOC). 19The Applicant's agent made an oral application pursuant to r 31.19 seeking leave to rely on the expert evidence of a surveyor, Mr Tanner, which he submits has a legitimate forensic purpose. He submits that surveying evidence is necessary to establish firstly that there is work taking place outside the concept plan area (APOC par 31 - 33). The area in question was identified in Court by Mr Oshlack as a hook-shaped area to the north-west of the AIR site where Wrexham Road is located. Secondly, to measure the area of excavation being undertaken to confirm whether there is a breach of condition B13(2) of the approval (APOC par 35). If Mr Tanner is not granted access by court order the Applicant cannot present evidence to support his case. Mr Tanner is an experienced surveyor whose evidence will assist the Court. 20An affidavit of Mr Robert Wilcher, solicitor for the First Respondent, sworn on 2 February 2011 states that the ongoing works undertaken by the First Respondent are within areas approved by the concept plan approval and the major project approval (APOC 31 - 33). In relation to par 35 APOC (B13(2)) which limits excavation to a 5 ha maximum area at any time over a site of 18.7 ha, he has been instructed that a registered surveyor, Mr Robson, has been employed by the First Respondent to undertake surveys of the earthworks area on the site. Mr Robson undertook a survey on which the total size of earthworks was 3.85 ha as at 24 November 2010 referred to in Mr Braithwaite's affidavit. A further survey prepared by Mr Robson on or about 25 January 2011 which identifies the earthworks area as 4.2840 ha was attached to Mr Wilcher's affidavit. 21Mr Wilcher has also been instructed in relation to the practical difficulties arising from a visit by Mr Tanner due to current work taking place on the AIR land which would have to cease while he is there for safety reasons. A safety induction will be essential and a person in addition to Mr Robson will need to accompany Mr Tanner if he does attend. 22Access for Mr Tanner is opposed by the First Respondent because of practical difficulties and the potential impact on current operations on the AIR site. The concept plan area is irrelevant as the major project approval specifies what land is the subject of that approval. Condition A1 specifies which lots are to be developed and include Lot 1 DP 204631 and Lot 2 DP 595488. While Mr Oshlack has identified that Part Lot 1 DP 204631 is owned by Wollongong City Council not the First Respondent that is irrelevant as the approval contemplates development on that lot. Condition A3 approves the development in accordance with a number of plans. One of the approved plans 602100-006 refers to the renewal of Wrexham Road Overbridge Sandon Point. That area is on the Council owned land. 23In my view, the grounds asserted in APOC par 31 - 33 that there is work taking place outside the concept plan area lacks legal foundation when the conditions of approval, the relevant legal document, are considered. The First Respondent's submissions based on Mr Wilcher's affidavit and also from simply looking at the conditions of approval identify that work is permitted in the area owned by Wollongong City Council (Part Lot 1 DP 204631) where Mr Oshlack indicated that he believed work was taking place outside the concept plan area. The conditions of approval clearly identify that land as being subject to the approval. Work in that area is authorised by the conditions of approval. There is no useful purpose served in having Mr Tanner survey that area. 24In relation to the area of earthworks taking place on the AIR land, the First Respondent has had surveys of the area of earthworks undertaken on the AIR site by a qualified surveyor, Mr Robson. The Applicant essentially wishes to test that evidence by calling a surveyor as an expert witness. Expert witnesses are called, with leave of the Court, in order to assist the Court in the resolution of matters before it. To the extent that Mr Robson may not be able to present himself as an independent expert witness under the Expert Witness Code of Practice simply because of his earlier and entirely proper engagement by the First Respondent to undertake survey work necessary to determine compliance with condition B13(2), I consider I should grant leave to the Applicant to call Mr Tanner as an expert surveyor on specified terms. 25The Court can make orders providing for access to land under r 31.20 including under subrule (2)(i) other directions that may assist an expert in the exercise of his functions. I will make orders for Mr Tanner to take measurements concerning the extent of earthworks on the AIR site. Orders which facilitate compliance with safety requirements and minimising disruption to work on the AIR land will be made if proposed by the First Respondent. Further the Court will specify what Mr Tanner is to measure when on the AIR site. The parties must agree on a brief for that purpose. For example, I do not want any conflicting survey evidence before the Court as to what constitutes "earthworks" for the purpose of B13(2). Mr Tanner should also be provided with Mr Robson's surveys referred to in the affidavit of Mr Wilcher.

Further evidence 26A further order in the Applicant's Notice of Motion is sought for an extension of time to file evidence by 15 February 2011. That date has passed. There was extensive discussion with the parties at the hearing as to what evidence the Applicant was intending to file and when, and the impact on the First Respondent which also has to prepare its evidence, given that the timetable ordered, when the matter was set down for hearing in November 2010, that the Applicant to file evidence by 21 January 2011. I will not canvas now all the reasons for the delay in this matter. Given the volume of evidence the Applicant wishes to rely on, which includes evidence from third parties who may not be able to comply with a very strict timetable, I am concerned with possible prejudice to the First Respondent in having to respond so close to a hearing at the end of March 2011. Vacation of dates appears essential if this matter is to proceed in an orderly and fair fashion. A timetable for the filing of evidence by the parties including preparation of the tender bundle of documents in light of a new hearing date will be made forthwith. 27Documents the Applicant seeks to rely on as part of his case on the exercise of the Court's discretion must be identified separately as part of any bundle of documents to be relied on by the Applicant.

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: 25 February 2011

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