Lake Macquarie City Council v Australian Native Landscapes Pty Limited [2016] NSWLEC 90 | Case summary

Land and Environment Court (NSW)|2016-07-21|Before: Sheahan J, Biscoe J

Solicitors: Moray & Agnew Newcastle (Applicant) McCabes Lawyers (Respondent) File Number(s): 2016/213622

Introduction

Australian Native Landscapes Pty Limited ("ANL") asks the Court to extend to 31 December 2016, from 31 July 2016, a stay placed on some orders made in this matter in 2015.
Council opposes the motion, which, for reasons not explained to the Court, was not filed by ANL until 12 July 2016.
The substantive civil enforcement proceedings were heard by Biscoe J over 13 hearing days in May and June 2015, and His Honour published a very comprehensive judgment on 17 July 2015: Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 2) [2015] NSWLEC 114.
The case concerned a large and fairly longstanding rural composting facility at Cooranbong, said to employ 36 persons.
Council alleged unlawful use, works and operations, a history of resident complaints about odour and dust, breaches of the Native Vegetation Act 2003 ("NV Act"), and breaches of the Protection of the Environment Operations Act 1997 ("POEO Act").
ANL resisted any grant of relief, and fought the case strenuously, but Council envisaged that, if orders were made in its favour, they could be stayed for a period of six months.

The Orders

Biscoe J found: 1. at [74]: that the leachate dam, bund, and woodchip stockpile area required, but did not have, development consent ("DC"); 2. at [83]: that he should grant injunctive relief in respect of the permitted hours for operating mechanical equipment; 3. at [89]: that ANL had breached the NV Act; 4. at [98] and [111]: that offensive odours had at times been detected off-site, in breach of the POEO Act; and 5. at [120] - [180]: that there had been, and may be further, water pollution incidents, in breach of the POEO Act.
His Honour, having upheld the majority of Council's claims, proposed ([225]) a range of orders, which he subsequently settled with the parties on 23 July 2015. Those orders were, however, not entered until 11 November 2015.
Relevantly, the orders may be summarized as follows:-
Order 1 restrained the use of parts of the site unless and until a development consent is in force. Order 2 restrained the use of mechanical equipment to certain hours. Order 3 restrained emission of any offensive odour not authorised by an environment protection licence.
Order 4 was a declaration that certain native vegetation had been cleared in breach of the NV Act.
Order 5.1 required ANL to provide a detailed "water use accounting" by 1 December 2015; Order 5.2 required ANL to provide sufficient surcharge capacity in the Leachate Dam to contain specified amounts of runoff; and Order 5.3 required the company to provide to Council an engineer's certification in respect of any works necessary to provide that surcharge capacity.
Order 6 sought to regulate the Leachate Dam, pending full compliance with Order 5.
Order 7 required ANL to divert all leachate from its woodchip stockpile area, so that it would flow only towards the leachate dam.
Order 8 stayed orders 1, 5.2, 5.3, and 7 until 31 July 2016.
Order 9 stayed Order 3 until 31 January 2016, and Order 10 granted liberty to apply for that stay to be extended until no later than 31 July 2016.
Order 11 dealt with costs, and Order 12 with a possible application for remediation orders.

Subsequent Actions

In September 2015, ANL instructed town planner Denis Ian Smith, whom it had first engaged in December 2013, "to prepare a development application [("DA")] to deal with the matters set out in Order 1".
His "scope of work" was later expanded to embrace other elements for which consent was sought.
He opines (affidavit 12 July 2016, par 4) that "extensive works" were required before the DA could be prepared. ANL's solicitor Paul Vergotis (affidavit 12 July 2016, par 6) says that compliance with Orders 5.1 and 5.2 was a crucial prerequisite in this regard.
The leachate dam was dewatered between 21 July and 26 August 2015, and desludged between 31 August and mid-September 2015.
ANL's "water use accounting" report (Order 5.1) covered the period July 2015 - January 2016. It notes that it was due to be provided no later than 1 December 2015, and also notes a delay (allegedly due to rainfall) in installing the gauge board required for the leachate dam. The log sheets would suggest that the gauge board was not installed until the end of November 2015.
Smith deposes (par 7) that Dr Stephen Perrens was engaged as a hydraulics expert regarding Orders 5.1 and 5.2. Smith does not disclose the date of that engagement, but he opines (par 8) that necessary statistical work by ANL was delayed by rain in January 2016.
Dr Perrens's surcharge capacity report (Order 5.2) was not dated, nor provided to ANL, until 10 April 2016, and it recommended that any excess "above a level of 5.2 m on the gauge board" be removed from the dam, and the level reduced to 5.2 m.
An on-site meeting between Council and ANL was held on 18 March 2016, apparently to review progress.
Smith did not attend, but completed, by mid-May 2016, his Statement of Environment Effects ("SEE") to accompany the DA, which was lodged on 18 May 2016.
The DA has a broader scope than the requirements of the Court's Orders, and sought DC for some "existing items" and some "new development" (e.g. incorporation of a landscaping material supplies purpose, a weighbridge and other works).

Council's position

Council sought additional information on the DA by way of a six-page letter on 21 June 2016, with a response requested within 28 days. That time has now expired, and the Court was not told where ANL is in regard to its response.
A Class 1 appeal against deemed refusal of the DA by Council has now been lodged with the Court (matter 16/219940), and is returnable for directions on 22 August 2016.
On Council's behalf, senior development planner David Lovell (affidavit 20 July 2016) deposes to his awareness of many ANL actions in response to the Court's orders, and to his attendance at the 18 March site meeting. On that day he was given some undated photos of site works, the water use accounting report, and a geotechnical assessment by Martens Consulting Engineers, dated December 2015.
Among his observations he deposes to detecting an offensive odour while he was on the land on that day. A follow-up was agreed upon, but Council has heard nothing since. ANL claimed that breaches of truck operation times had been remedied.
Lovell told the ANL representatives that "council would likely not object" to the proposed DA and its inclusion of a weighbridge. The DA was then expected to be lodged "in mid-April 2016".
Lovell opines (par 12) "that there has not been compliance with the Orders made by the Court on 23 July 2015, specifically Orders 2 (use of trucks), 3 (offensive odour), 5.1 (detailed accounting of water use), and 6 (interim leachate dam water level limits)", and he cites particulars.
He also deposes (par 16) to receipt of continuing post-orders complaints by neighbours regarding odour, noise and other matters, and he annexed copies (at "E"). Dr Berveling was rather dismissive of them because they come from only a few residents, but I find their complaints cogent, as well as persistent, and they generally apply to those July 2015 orders which are not caught by the present application.

Consideration

The discretion to grant an extension of a stay must be exercised judicially and carefully.
As the Court of Appeal pointed out, especially in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, per Kirby P at 339 - 340, Councils are vested with the duty to protect the public interest which exists in orderly planning, and in the development and use of the environment, defined widely. Unless the Courts act to restrain or remedy breaches of planning law, a private advantage may be won at the expense of the public interest.
Complaints about the operation in the present case continue.
The arguments in favour of extending the stay are not strong, particularly when viewed against several elements of the chronology I have described - e.g., the missing of the 1 December 2015 deadline; the tardiness in preparing and lodging the necessary DA, and now apparently in providing the additional information Council has sought; making the water use accounting available to Council only on 18 March 2016; the delay in seeking the extension of the stay; and the failure to follow up local concerns discussed on 18 March.
Mr To has argued that an extension of the stay may not really be needed, and he has certainly argued strongly that it is not justified, and should be refused. He points out, inter alia, that ANL has produced no evidence of any attempt to comply with Order 7 regarding the diversion of leachate from a key part of the site. The Court was reluctant to grant the extension.
On the other hand, there has been some progress, and the Court should not be too precipitous in making a decision that may well force the closure of ANL's operation, especially when the parties and the Court are soon to examine in the Class 1 appeal many merits issues regarding it.
The Council being supportive of the operation, if regularised, the Class 1 appeal should be resolved within twelve weeks.

Conclusion and Orders

I am, therefore, prepared to extend the stay for a short period - until only 14 October 2016.
Accordingly, the order of the Court will be that Order 8 made on 11 November 2015 be amended to replace the date "31 July 2016" with "14 October 2016".
The respondent's Notice of Motion of 12 July 2016 is otherwise dismissed, and the respondent is ordered to pay the applicant's costs.

Amendments 25 July 2016 - Citation amended - judgment number (No 4) replaces (No 3) 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 July 2016

Lake Macquarie City Council v Australian Native Landscapes Pty Limited

At a glance

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Judgment (8 paragraphs)

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Cases Cited (2)

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