M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council

Land and Environment Court (NSW)|2018-06-20|Before: Robson J

Solicitors: Department of Planning and Environment (Applicant for Joinder) Bradley Allen Love Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/00007966

Judgment

Before the Court are three notices of motion in these Class 1 proceedings which came before me as Duty Judge on 20 June 2018. The notices of motion can be briefly described: 1. A notice of motion filed 13 June 2018 on behalf of the Southern Regional Planning Panel ('Panel') seeking joinder ('Joinder Motion'); 2. A notice of motion filed 15 June 2018 on behalf of M.H. Earthmoving Pty Ltd ('M.H. Earthmoving') seeking the determination of two separate questions and costs ('Separate Questions and Costs Motion'); and 3. A notice of motion filed 15 June 2018 on behalf of M.H. Earthmoving seeking expedition ('Expedition Motion').

The Separate Questions and Costs Motion

After the Joinder Motion was filed, M.H. Earthmoving proposed, as part of the Separate Questions and Costs Motion, that two separate questions be heard which it submitted should be heard at the same time as the Joinder Motion. The two separate questions are as follows: a. whether the Southern Regional Planning Panel determined Development Application 242/2017 on 7 December 2017; b. whether the Southern Regional Planning Panel has the power, pursuant to s 8.15(4) of the Environmental Planning and Assessment Act 1979 to control and direct the Respondent in connection with the conduct of this appeal.
The answers to these questions depend on whether the Panel is the same legal entity as the SRJPP. If it is, the separate questions will be answered in the affirmative as the Panel will be the same entity that determined the DA and will consequently have the power to control and direct Council in relation to the appeal.
The power to make orders for a question to be decided separately is found in r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), which provides: The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
The principles applicable to the exercise of the Court's discretion to order the determination of a separate question are well-known, and were distilled by Biscoe J in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 ('820 Cawdor Road') at [10]. His Honour's analysis of the principles has been followed in a number of subsequent proceedings (see Luxcon Developments No 6 Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 43 at [21]-[22]).
The principles are as follows: 1. Generally speaking, all issues should be tried and decided at the same time. 2. It is for the party seeking the order to show to the Court that separate decision of a question is appropriate. 3. Separate decision of a question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. This gives effect to s 56 of the Civil Procedure Act 2005 (NSW) ('the CP Act'). Thus, the procedure needs to be fair and involve real savings in time and cost. 4. Separate decision of a question may be appropriate where it is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. 5. In particular circumstances separate decision of a question may be appropriate even if it will not bring the proceedings to an end. This may occur where the decision will substantially narrow the field of controversy by obviating unnecessary and expensive hearing of other questions or where the decision carries with it a strong prospect that the parties will then be able to agree upon resolution of the proceedings. But on such occasions care must be exercised lest fragmentation of the proceedings (particularly where the exercise of appeal rights is borne in mind) brings delay, expense, and hardship greater than that which the making of an order was intended to avoid. 6. Separate decision of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to remaining issues in the proceedings (and thus require the remaining issues to be dealt with by another judge). 7. Where the question sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and all the facts upon which that question has to be considered should be agreed or clearly ascertainable. Where the facts upon which a decision depends are contentious, confidence in the utility of the separate question process may be less likely.
The ordinary course under r 28.2 is for a judge to hear a discrete motion on whether a separate question should be ordered, and if so, for that question to then be heard on another occasion. The present circumstance is somewhat unusual in that M.H. Earthmoving asked that the separate questions be heard and decided together with the Joinder Motion.
The course proposed by M.H. Earthmoving was consented to by both Council and the Panel, and I considered it to be an appropriate course given that similar submissions to those to be made by M.H. Earthmoving in respect of the separate questions would have been made in respect of the Joinder Motion in any event. Moreover, given the parties were ready to proceed to argument on the separate questions, I considered their speedy resolution would facilitate the "just, quick and cheap resolution of the real issues in the proceedings", in line with the dictates of s 56 of the CP Act and criterion (c) identified by Biscoe J in 820 Cawdor Road.
I therefore indicated that the Court was prepared to receive evidence and submissions in relation to all three motions including on the separate questions. These submissions were heard in Court on 20 June 2018, with M.H. Earthmoving and the Panel also providing written submissions in respect of the issues raised.
I note however that argument was reserved in respect of order 3(b) sought in the Separate Questions and Costs Motion (which seeks M.H. Earthmoving's costs of a consent orders hearing in the event that there is no further conciliation conference) and further that order 4(b) in that motion (which sought that Council pay M.H. Earthmoving's costs of the terminated conciliation conference in the alternative to its primary position that its costs should be borne by the Panel) is no longer pursued by M.H. Earthmoving.

The Panel's status

The Panel is now constituted under s 2.12 and Sch 2 Pt 3 of the EPA Act. Its functions are set out in s 2.15: 2.15 Functions of Sydney district and regional planning panels (cf previous s 23G) A Sydney district or regional planning panel has the following functions: (a) the functions of the consent authority under Part 4 for regionally significant development that are (subject to this Act) conferred on it under this Act, (b) any functions under this Act of a council within its area that are conferred on it under section 9.6, (c) to advise the Minister or the Planning Secretary as to planning or development matters relating to the part of the State for which it is constituted (or any related matters) if requested to do so by the Minister or the Planning Secretary, (d) any other function conferred or imposed on it under this or any other Act. Note. Under section 9.7, a panel (or the Independent Planning Commission if acting in place of the panel) is, in the exercise of a function referred to in paragraph (b), taken to be the council and is to exercise the function to the exclusion of the council.
Section 8.15(4) of the EPA Act provides: If the determination or decision appealed against under this Division was made by a Sydney district or regional planning panel or a local planning panel, the council for the area concerned is to be the respondent to the appeal but is subject to the control and direction of the panel in connection with the conduct of the appeal. The council is to give notice of the appeal to the panel.
Clause 9 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) ('Transitional Regulation') provides: 9 Joint regional planning panels (1) A person holding office as a member of a joint regional planning panel (including a council nominee) under section 23G of, and Schedule 4 to, the Act immediately before the commencement of this clause is taken to have been appointed or nominated as a member of the corresponding regional planning panel established under the Act for the balance of the person's term of office. (2) A reference in this clause to a member includes a reference to an alternate of a member appointed under the Act.

Submissions

M.H. Earthmoving, for whom Mr A Galasso of senior counsel and Ms C Novak of counsel appear, submits that s 8.15(4) of the EPA Act does not apply to the Panel because the decision to refuse the DA was made by the SRJPP, not the Panel. It submits that the Panel was created by the March 2018 amendments to the EPA Act and is an entirely different entity to the SRJPP.
In this respect, M.H. Earthmoving submits that it is significant that the EPA Act as amended did not include a provision which stipulates the Panel is a continuation of the former SRJPP. M.H. Earthmoving submits that such provisions are common in the realm of environmental and planning law, and refers to s 10.15 of the Biodiversity Conservation Act 2016 (NSW), cl 9 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW), and cl 4 of Greater Sydney Commission (Planning Panels) Order 2016 (NSW).
M.H. Earthmoving submits that if it was intended that the Panel was the same legal entity as the SRJPP, then cl 9 of the Transitional Regulation would be unnecessary. Moreover, M.H. Earthmoving contrasts the language of cl 9 with the language in cll 6 and 7 which relevantly provide: 6 Ministerial corporation sole (cf previous s 8) (1) The Planning Ministerial Corporation constituted under this Act is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as, the corporation constituted as the "Minister administering the Environmental Planning and Assessment Act 1979" under section 8 of the Act immediately before the repeal of that section by the amending Act… … 7 Planning Assessment Commission (cf previous s 23B) (1) The Independent Planning Commission constituted under the Act is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as, the Planning Assessment Commission established under section 23B of the Act immediately before the repeal of that section by the amending Act (emphasis added)… …
M.H. Earthmoving submits that, giving each provision of the Transitional Regulation work to do, the Panel is a new legal entity rather than altered version of the SRJPP. Therefore, M.H. Earthmoving submits that the Panel is not a relevant panel for the purposes of s 8.15(4) of the EPA Act as it did not exist on 7 December 2017, the date that the DA was refused.
The Panel, for whom Mr S Nash of counsel appears, submits that it is the same legal entity as the SRJPP, noting that by virtue of the operation of cl 9 of the Transitional Regulation it is comprised of the same members and has the same functions as the former SRJPP. It submits that provisions such as those found in cll 6 and 7 of the Transitional Regulation would have been unnecessary given that the Panel's name remained largely unchanged; only the word "joint" was dropped from its title. The Panel submits that in the case of cll 6 and 7 more significant changes to the names of the bodies in question could have led to confusion without the clarification provided by those clauses.

Consideration

Prior to the amendments to the EPA Act which came into effect on 1 March 2018, the power to constitute regional planning panels was found in s 23G of the EPA Act which provided, in part, as follows: 23G Joint regional planning panels (1) The Minister may, by order published on the NSW legislation website, constitute a joint regional planning panel for a particular part of the State specified in the order. (2) A regional panel has the following functions: (a) any of a council's functions as a consent authority that are conferred on it under an environmental planning instrument, (b) any functions that are conferred on it under Division 1AA (Planning administrators and panels) of Part 6, (c) to advise the Minister or the Secretary as to planning or development matters or environmental planning instruments relating to the part of the State for which it is appointed, or any related matters, if requested to do so by the Minister or the Secretary (as the case may be). …
There is a difference in nomenclature under the new s 2.15 as befits the other changes to the EPA Act, but it is clear that the panels created under s 2.12 have largely the same functions as those constituted under the old s 23G. It is agreed between the parties that if the DA was lodged today (or any time after 1 March 2018), the Panel would be the relevant consent authority.
Schedule 2 cl 10(c) of the EPA Act as amended provides that the Panel covers the following local government areas: Southern Regional Planning Panel - local government areas of City of Albury, Bega Valley, Coolamon, Cootamundra-Gundagai Regional, Eurobodalla, Goulburn Mulwaree, Greater Hume Shire, Hilltops, Junee, Kiama, Lockhart, Queanbeyan-Palerang Regional, Shellharbour City, Shoalhaven City, Snowy Monaro Regional, Snowy Valleys, Temora, Upper Lachlan Shire, Wagga Wagga City, Wingecarribee, Wollongong City and Yass Valley.
By virtue of the Joint Regional Planning Panels Order 2009 (NSW), the SRJPP covered the following local government areas: Southern Region Joint Planning Panel - local government areas of City of Albury, Bega Valley, Bombala, Boorowa, Coolamon, Cooma-Monaro Shire, Cootamundra, Eurobodalla, Goulburn Mulwaree, Greater Hume Shire, Gundagai, Harden, Junee, Kiama, Lockhart, Palerang, Queanbeyan City, Shellharbour City, Shoalhaven City, Snowy River, Temora, Tumbarumba, Tumut Shire, Upper Lachlan Shire, Wagga Wagga City, Wingecarribee, Wollongong City, Yass Valley and Young,
It is to be observed that the only differences between the areas covered by the SRJPP and the Panel are differences arising from the merger of various local government areas.
It is clear that the functions of the SRJPP are continued by the Panel, and further that the Panel is made up of the same appointees as the SRJPP by operation of cl 9 of the Transitional Regulation. Absent any other indication, this would tend to suggest that the Panel is a continuation of the SRJPP.
However, M.H. Earthmoving points to a contrary indication in the form of the absence of an express stipulation that the Panel "is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as" the SRJPP. This is in contradistinction to cll 6 and 7 of the Transitional Regulation which stipulate that the Planning Ministerial Corporation and the Independent Planning Commission are taken to be the same legal entities as the Minister administering the Environmental Planning and Assessment Act 1979 and the Planning Assessment Commission respectively. It is also dissimilar to the other environmental Acts and regulations to which the Court was directed.
M.H. Earthmoving submits that all of the words in the Regulation should be given work to do, and that the effect of the approach taken by the Panel is to render those words in cll 6 and 7 otiose. However, I consider that those words in cll 6 and 7 are still given work to do in the context of those clauses in that they clarify confusion that might otherwise arise as to the status of the Planning Ministerial Corporation and the Independent Planning Commission, which as the Panel correctly submits have undergone more significant name changes than the Panel, the only change being the dropping of the word "Joint".
Also of some relevance, though not in my view determinative, is s 53 of the Interpretation Act 1987 (NSW) ('Interpretation Act') which provides: 53 Alterations of names and constitutions (1) If an Act or statutory rule alters the name of a body or office: (a) the body or office continues in existence under its new name so that its identity is not affected, and (b) a reference in any Act or instrument, or in any other document, to the body or office under its former name shall, except in relation to matters that occurred before the alteration took place, be read as a reference to the body or office under its new name. (2) If an Act or statutory rule alters the constitution of a body: (a) the body continues in existence as newly constituted so that its identity is not affected, (b) the alteration does not affect any functions of the body, (c) the alteration does not affect any legal or other proceedings instituted or to be instituted by or against the body and any legal or other proceedings that might have been continued or commenced by or against the body as previously constituted may be continued or commenced by or against the body as newly constituted, and (d) the alteration does not affect any investigation or inquiry being or proposed to be undertaken by any other person or body into any action taken or practice engaged in by the body before the alteration took place and any investigation or inquiry that might have been continued or commenced into any such action or practice may be continued or commenced as if the action had been taken or the practice had been engaged in by the body as newly constituted.
However, to apply s 53 of the Interpretation Act in this circumstance is on one view to beg the question as M.H. Earthmoving submits that the effect of the statutory amendments is not simply to alter the SRJPP's name or constitution but to create an entirely new statutory entity.
Whilst I consider there is some force to this position, and M.H. Earthmoving's submission that cl 9 of the Transitional Regulation would be unnecessary if the SRJPP's identity was maintained after the amendments, on balance I consider that the Panel is the same entity as the SRJPP.
Although it might be thought that the word "corresponding" in cl 9 of the Transitional Regulation is rendered somewhat inapt by this conclusion, it is necessary to bear in mind that cl 9 is referring to each former regional joint planning panel. In those circumstances, I consider cl 9 a relatively neutral consideration.
I consider the conclusion that the SRJPP is the same entity as the Panel is consistent with the statutory scheme the legislature has created, the effect of which is to provide an alternative consent authority for certain types of development. There is no doubt that designated development made both prior to and after the statutory amendments would have been considered by a regional planning panel as consent authority. The anomalous consequence of the construction proposed by M.H. Earthmoving is that for certain applications for designated development, the SRJPP would have been the consent authority, but the Panel would have neither the right to attend the appeal as it were a party without leave, a right which it had under the EPA Act prior to the amendments being passed, nor would it have the power to control and direct Council in any appeal, a power conferred by the amendments. The Panel would therefore lose all rights over the conduct of the appeal despite having been the original consent authority.
The fact that a particular construction produces an anomalous outcome is not grounds to prefer another construction where it is contrary to the natural meaning of the words used: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26 at 320. However, I do not consider that is the present case as the words used do not compel a particular conclusion. Therefore, I consider that, in accordance with the dictates of s 33 of the Interpretation Act, a construction should be adopted which promotes the object or purpose of the creation of regional planning panels, which I consider is for the Panel to determine applications for designated development and have at least some influence over the conduct of any appeal.
I consider that s 53 of the Interpretation Act provides some support for this approach in that it effectively provides an assumption, absent a contrary intention, that minor statutory alterations to bodies should not be read in a technical way to create the kind of outcome for which M.H. Earthmoving contends.
For those reasons, I find that the SRJPP and the Panel are the same legal entity. Accordingly, I would answer both of the separate questions posed by M.H. Earthmoving in its notice of motion in the affirmative.

Costs of the conciliation conference

M.H. Earthmoving seeks the costs of the terminated s 34 conciliation conference from the Panel. It submits that the conciliation conference would have been dispositive of the appeal but for the Panel's purported exercise of power pursuant to s 8.15 of the EPA Act.
Although the Panel was not a party to the proceedings at the time of the conciliation conference, M.H. Earthmoving submits that the Court's discretion to award costs under s 98 of the CP Act is not limited to parties. M.H. Earthmoving submits that the conduct of the Panel has been so unreasonable that it is appropriate a costs order be made directly against it.
The Panel submits that it did not act unreasonably such as to warrant a costs order being made against it, and further that the costs of the conciliation conference were not "thrown away" in circumstances where M.H. Earthmoving was able to resolve outstanding merit matters to the satisfaction of Council and one of four outstanding merit matters to the satisfaction of the Panel.

Consideration

Section 98 of the CP Act relevantly provides: 98 Courts powers as to costs (cf Act No 52 1970, section 76; SCR Part 52A, rules 5, 6, 7 and 8; Act No 9 1973, section 148B; Act No 11 1970, section 34) (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
In Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 ('Knight'), Mason CJ and Dean J said at [34]: For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.
In Diamond v Baulkham Hills Shire Council [1999] NSWCA 277 ('Diamond'), Sheller JA, with whom Cole AJA agreed, dismissed an appeal against a decision of Sheahan J which imposed a security for costs order against a non-party. At [12], his Honour said: Clearly enough, if no security for costs has been sought against a party there is a strong argument, as was acknowledged in the High Court, for saying that at the end of the proceedings an order for costs should not be sought against a non-party because the party, against whom security was not sought, is "a man of straw". That is not this case. In this case, security for costs was sought and obtained. It is apparent that despite that the security for costs was not provided. His Honour made a finding that that party, Tinda, was a man of straw. That being so, it seems to me that it was open to his Honour to come to the conclusion that it was appropriate to make a costs order against Mr Diamond.
In FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340, Basten JA noted at [210] that the categories of case where it is appropriate to make an order against a non-party are not closed.
Pursuant to r 3.7 of the Land and Environment Court Rules 2007 (NSW) ('LEC Rules'), the usual course is for there to be no order for costs in Class 1 proceedings. Relevantly, the rule provides: … (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
I accept, in view of the principles articulated in Knight and Diamond, that the Court has the power under s 98 of the CP Act to order costs against a non-party, and this power confers upon the Court an ability to order that the Panel pay M.H. Earthmoving's costs of the terminated conciliation conference. However, in the context of a conciliation conference, I consider that power should only be exercised in the circumstances stipulated by r 3.7 of the LEC Rules.
In Arden Anglican School v Hornsby Shire Council [2008] NSWLEC 103; (2008) 158 LGERA 224, Biscoe J described the operation of r 3.7 at [9]: In the context of the presumptive rule that there will be no order as to costs in planning appeals, the power to make a costs order is in the broadest of terms, that is, what is "fair and reasonable in the circumstances". All rational considerations are relevant to the formulation of that judgment. In the end, the question is whether, in the opinion of the Court, they are of sufficient weight to overcome the presumptive rule. Indicative guidelines for the exercise of the discretion are useful in promoting consistent decisions, but are not entitled to presumptive, let alone determinative, weight…
A helpful summary of the law relating to r 3.7 is contained in Sheahan J's judgment in Dunford v Gosford City Council (No 3) [2015] NSWLEC 96 at [30]: a. Rule 3.7(2) creates a basic rule where there is a presumption against the making of an order for costs [Port Stephens Council v Sansom ("Sansom") [2007] NSWCA 299; (2007) 156 LGERA 125 at [48]]. b. The effect of the basic rule in r3.7(2) is that, in the ordinary course, costs will lie where they fall [Agonic Holdings Pty Ltd v Lithgow City Council [2009] NSWLEC 34 at [5] per Biscoe J]. c. The question then is whether, despite the basic rule, it is "fair and reasonable" that a party should be reimbursed for the costs it incurred [Sansom at [50]]. d. The formulation -"fair and reasonable" - calls for a judgment to be made, rather than as a discretion to be exercised, but in any event the evaluative process can be accurately described as conferring a wide discretion [Sansom at [51]]. e. Rule 3.7(3) identifies, without limitation, some circumstances in which the Court might consider the making of a costs order to be fair and reasonable [Pet Carriers International Pty Ltd v Botany Bay [City] Council (No. 2) [2013] NSWLEC 150 at [4] per Preston CJ]. f. The circumstances identified in r3.7(3) may rebut the presumption in r3.7(2) and may inform the Court's discretion but are neither prescriptive nor exhaustive [Pepperwood Ridge Pty Ltd v Newcastle City Council [2008] NSWLEC 196; 160 LGERA 164 at [73] per Biscoe J; Hillsong Church Limited v Council of the City of Sydney (No. 2) [2012] NSWLEC 118 at [55] per Pepper J].
Whether it is "fair and reasonable" for the Panel to pay the costs of the conciliation conference depends on a holistic analysis of the relevant facts and circumstances of the case. The relevant facts may be briefly summarised.
On 9 April 2018, the Panel's solicitors emailed Ms Alice Menyhart, solicitor for M.H. Earthmoving, advising that "the Panel does not wish to be involved in the appeal, but wishes to be kept informed of progress in the appeal".
On 10 May 2018, the Panel issued Council the following directions pursuant to s 8.15(4) of the EPA Act: 1. to participate in good faith in the conciliation conference in accordance with legal obligations including any relevant Practice Notes or policies of the Land and Environment Court; 2. not to enter any binding agreement with the Applicant without the express approval of the Panel. 3. to provide a copy of any proposed section 34 agreement to the Panel for the Panel's consideration within 3 working days of the section 34 conference.
Ms Menyhart deposes that the following persons, in addition to herself, were in attendance at the s 34 conciliation conference on 11 May 2018: For the applicant: a. Martin Hay, Director of MHE; b. David McMahon, Environmental Scientist and Director of DM McMahon Pty Ltd; c. Alan Dyer, Technical Advisor and Director of InSitu Advisory Pty Ltd; d. Garry Salvestro, Town Planner and Director of Salvestro Planning; e. Adrian Galasso SC; f. Corrina Novak of counsel; g. Alan Bradbury, Legal Director of Bradley Allen Love Lawyers. For the respondent: a. Allen Dwyer, General Manager at Cootamundra-Gundagai Regional Council; b. Matt Harker of Lindsay Taylor Lawyers; c. Michael Blackham, hydro-geologist; d. Brent Livermore, Town Planner.
Ms Menyhart further deposes that no one from the Panel was in attendance at the s 34 conciliation conference. It appears the conciliation conference was the subject of short mentions before Commissioner Bish on 15, 16 and 21 May 2018, before being terminated on 12 June 2018.
On 7 June 2018, Mr Chris Jewell, an environmental management consultant, provided an "initial appraisal" of the hydrological issues associated with the DA to the Panel and the Department of Planning and Environment. Amongst the documents he reviewed in the course of that appraisal were two reports cited as "The First Blackman Report (Coffey, 7 May 2018)" and "The Second Blackman Report (Coffey, 17 May 2018)". Mr Jewell concluded that three of the four reasons for the DA's initial refusal by the Panel remained valid.
On 8 June, the Panel sent a letter to Council's solicitors which relevantly provided: Pursuant to section 8.15(4) of the Environmental Planning and Assessment Act 1979, the Panel: (a) does not approve the Council entering into the Proposed Agreement; and (b) directs the Council to not enter into the Proposed Agreement with the Applicant. The Panel intends to make an application to seek the leave of the Court to be joined to the proceedings.
It is clear that M.H. Earthmoving exhausted significant effort and incurred significant expense in the course of the s 34 conciliation conference and I consider its frustration that this did not prove dispositive of the proceedings understandable in light of the fact that Council was satisfied that the outstanding merit issues had been addressed.
However, I must be satisfied that the Panel acted so unreasonably that it is fair and reasonable in the circumstances to make an order contrary to the presumptive rule in r 3.7. This is a high bar. As Pain J held in ROI Properties Pty Ltd v Council of City of Sydney [2010] NSWLEC 22 at [22]: Given the non-adversarial nature of a s 34 conference the Court should award costs against any party in relation to the conduct of such proceedings reluctantly. The nature of conciliation conferences is more comparable to mediation proceedings than to an adversarial court hearing. Costs of mediation would not generally be awarded to any party.
That principle has less application in the present proceedings as costs are sought against a non-party to the conciliation conference. However, r 3.7 remains applicable and requires that I be satisfied that the Panel's conduct can properly be described as unreasonable.
I note in the first instance that it is by no means clear that the Panel would have been entitled to attend the conciliation conference absent seeking leave from the Court. Under s 97A of the EPA Act prior to the March amendments, the SRJPP was "entitled to be heard at the hearing of the appeal" as if it were a party to the proceedings, but that right was not maintained after the amendments were passed. In those circumstances, I do not consider that it was unreasonable for the Panel, being satisfied that Council had adopted its reasons for refusal in its Statement of Facts and Contentions filed 7 February 2018, to advise that it did not wish to be "involved in the appeal" but wished to be kept informed of the progress of the proceedings. On 10 May 2018, prior to the commencement of the conciliation conference, the Panel specifically directed that Council was not to enter a binding agreement without its approval.
It is no doubt frustrating to M.H. Earthmoving that the Panel exercised a right, in effect, to terminate the conciliation conference despite not having representatives present. However, it was entitled to do so under the statutory scheme and in circumstances where the Panel had the advice of Mr Jewell that three of its earlier expressed concerns in relation to the DA remained valid, I am not persuaded that the Panel exercised its statutory rights unreasonably or for an improper purpose.
Even if, contrary to my finding above regarding the status of the Panel in these proceedings, the Panel did not have the powers conferred by s 8.15(4) of the EPA Act because the relevant decision was made by a different legal entity, I do not consider that would change the reasonableness of the Panel's conduct. This is because it was reasonable for the Panel to assume that it was the same body as the SRJPP, and Council clearly took the view that the Panel had the power to issue it with directions.
Moreover, whilst M.H. Earthmoving's frustration that the matter will continue to a hearing is understandable, I consider there is force to the Panel's submission that the costs of the conciliation conference were not "thrown away". Council is now satisfied of the merit matters it otherwise harboured concerns about, and the Panel has been satisfied in respect of one of the four reasons for which the DA was originally refused.
In those circumstances, I do not think it would be fair and reasonable for the Panel to bear M.H. Earthmoving's costs of the conciliation conference, and I therefore find that the presumptive rule has not been dislodged. I make no order for costs in respect of the conciliation conference.

The Joinder Motion

Section 8.15(2) of the EPA Act provides: … (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion: (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that: (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal.

Submissions

The Panel submits that these three bases of joinder are disjunctive, such that the Court's discretion to order the joinder of the Panel will be enlivened by any of the bases in s 8.15(2), being: 1. The ability to raise an issue on the appeal ('First Basis'); or 2. The interests of justice ('Second Basis'); or 3. The public interest ('Third Basis').
The Panel submits that the First Basis is satisfied in the circumstance that the conciliation conference has been terminated but that Council has indicated it no longer presses any of its contentions.
In this regard, the Panel relies upon the opinion of Mr Jewell, an environmental management consultant, and submits that the following merit issues are still relevant and were not resolved in the course of the conciliation conference: 1. The aquifer present on the land is a locally significant aquifer containing groundwater of a potable quality; 2. Monitoring data from certain bore sites on the land discloses that the groundwater has been impacted by leachate from the existing landfill; 3. There is a possibility that the proposed landfill extension will further impact the groundwater beneath the land; 4. It may not be possible to prevent further impact from the exiting landfill and due consideration should be given to the wider and longer term consequences of not respecting the well-established positions of the Department of Planning and Environment and the Environment Protection Authority regarding landfill siting; and 5. Three of the four concerns of the Panel remain supported by expert opinion.
The Panel submits that the Second Basis is satisfied having regard to the fact that it is the Panel's decision to refuse the DA which is being appealed. It submits that it is clearly in the interests of justice for the Panel to be allowed to defend its own decision in circumstances where the final decision of this Court will be deemed to be the final decision of the Panel.
In the circumstance that the Court finds the Panel is not the same entity as the SRJPP, the Panel submits that there is no doubt that the Panel would be the consent authority if the DA were to be determined today, which it says is also relevant to the Second Basis.
The Panel also places reliance upon s 64(1) of the Land and Environment Court Act 1979 (NSW) ('LEC Act') which provides that the Crown may appear before the Court in any case in which the public interest or any right or interest of the Crown may be affected or involved, in the circumstances that s 2.12(4) of the EPA Act provides that a "regional planning panel" is a NSW government agency. Section 13A(1) of the Interpretation Act 1987 (NSW) provides that if a body is a NSW government agency, it has the status, privileges and immunities of the Crown.
The Panel submits that, in all of the circumstances, the Third Basis for joinder is established, as there are clear public interest considerations including: 1. The Panel's special interest in the proceedings as a body representing the Crown; 2. The Panel's special interest in the proceedings as the original consent authority; 3. The fact that it would be more efficient for the Panel to be joined as a party than to use its power to direct and control Council's conduct of the case; 4. The high environmental sensitivity of the land; 5. The fact that the proposal is a form of "designated development" and consequently attracts greater scrutiny with respect to environmental impacts under the EPA Act; 6. The Environment Protection Authority's strong opposition to the proposal; and 7. The number of submissions made in respect of the proposal.
M.H. Earthmoving's primary position is that the Panel was not the relevant consent authority and that in that circumstance there is no basis for joinder.
Even if it is wrong about the construction of the EPA Act such that the Panel is the consent authority, M.H. Earthmoving says the fact that the Panel would have the power to control and direct Council means that the Court would refuse the joinder application as it would not be sensible to have a party which is able to direct another party.
M.H. Earthmoving submits that the First Basis for joinder is not met as the Panel is not seeking to raise any issues beyond those in respect of which Council satisfied itself during the course of the conciliation conference. M.H. Earthmoving further submits that the matters the Panel seeks to reagitate appear weak and it is unknown whether Mr Jewell had access to Council's final conditions of consent.
M.H. Earthmoving submits that neither the Second Basis nor the Third Basis for joinder is met in the circumstances because each of the issues the Panel seeks to raise has been addressed by Council. M.H. Earthmoving submits that this is not a case where there was no contradictor, and that the Court should find that it would be contrary to the interests of justice and the public interest to permit joinder at this late stage.
Council, for whom Ms A Hemmings of counsel appears, neither consents to nor opposes the Joinder Motion, but submits that, in the circumstance the Panel is found to have the power to control and direct Council, reliance on this power instead of joinder would be an inefficient way to conduct litigation.

Consideration

I consider that the three bases for joinder in s 8.15(2) of the EPA Act are disjunctive such that if any one of them is satisfied the Panel is entitled to joinder, subject to the discretion of the Court.
In relation to the First Basis for joinder, the Court must be satisfied that the Panel "is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if [the Panel] were not joined as a party".
The context of this case raises difficult questions of construction in relation to this provision regarding what constitutes an "issue" and what it means for an issue to be "sufficiently addressed" in the appeal.
I consider there is some force in the submission of M.H. Earthmoving that the Panel will not raise any new issues on appeal because all of the issues initially raised by Council in its Statement of Facts and Contentions filed 7 February 2018 were sufficiently addressed in the course of the conciliation conference. The Panel has made it clear that, if joined, it intends to make submissions "at least" in respect of matters that were included in Council's Statement of Facts and Contentions.
However, I do not consider that there is sufficient evidence before the Court to reach a qualitative conclusion as to the adequacy of the way in which those concerns were resolved in the conciliation conference. This is unsurprising and understandable in circumstances where s 34 of the LEC Act relevantly provides: … (10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement. … (11) Subject to subsections (10) and (12): (a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and (b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body. (12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document. …
There is no suggestion that Council acted in any way improperly in reaching its state of satisfaction that the outstanding merit issues had been addressed, however it is clear that absent either the joinder of the Panel as a party or a further direction being issued by the Panel to Council pursuant to s 8.15(4) of the EPA Act, the matter will proceed to a consent orders hearing in circumstances where the consent authority (the Panel) harbours residual concerns.
I consider that the matters which led the Panel to refuse the DA in the first instance are properly issues "that should be considered in relation to the appeal". Notwithstanding there is some debate as to whether those issues have been sufficiently dealt with, given the understandable paucity of the evidence before the Court to that effect, I consider that these are exceptional circumstances because the party which seeks joinder on the basis that the issues have not been sufficiently dealt with is the original consent authority. Therefore, I consider that the Panel satisfies the First Basis for joinder.
Even if I had not reached that finding, the Second Basis and the Third Basis provide a further opportunity for the Panel to make good an argument that it should be joined to the proceedings. Whilst there may be some circumstances in which the Second Basis and the Third Basis for joinder are properly considered separately, I consider that they give rise to similar considerations in the present case and it is therefore appropriate that I deal with them together.
I accept that the Panel meets these two bases essentially for the reasons it submits. Further, I am influenced by the fact that the statutory regime clearly nominates the Panel as the consent authority for designated development. This is indicative of an intention on the part of the legislature that designated development should receive special scrutiny and I consider that it is an appropriate consideration in the Joinder Motion.
Contrary to the submissions of M.H. Earthmoving, I am not persuaded that joinder is not in the interest of justice or the public interest because of any lateness in the application. The Panel was entitled not to seek an order for joinder at an earlier stage in circumstances where it is not the nominated respondent and the statutory scheme nominates Council as the body to carry out that function. The application for joinder was made promptly upon the Panel being notified of Council's state of satisfaction with respect to the merit matters outlined in its Statement of Facts and Contentions. I do not consider in those circumstances that the Panel has behaved in an unreasonable manner such as would disentitle it being joined as a party to the proceedings.
Despite having found that the Panel meets all three bases for joinder set out in s 8.15(2), that provision provides that the Court "may" order joinder in those circumstances. The Court retains discretion in respect of whether to make the order.
M.H. Earthmoving submits that I would not be satisfied that joinder is appropriate because the Panel could use its powers to control and direct Council rendering the application otiose.
I accept that the power under s 8.15(4) could be used by the Panel to direct the conduct of Council in the proceedings such that, even if it were not joined, the matter would proceed to a full hearing rather than a consent orders hearing.
However I also accept that, having regard to the number of tactical and procedural matters about which the Panel might legitimately wish to exercise its power of direction and control, to proceed on that basis would be an inefficient way to conduct litigation. I note that this is consistent with the position of Council, as submitted by Ms Hemmings, which was anxious about the practical consequences of proceeding on that basis.
Pursuant to s 56 of the CP Act, the Court is to have primary regard to the "just, quick and cheap resolution of the real issues in the proceedings". Section 57(1) of the CP Act provides: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. …
I find that the most effective way to give effect to s 56 and s 57 of the CP Act in the circumstances is to make an order that the Panel be joined to the proceedings, thereby avoiding the necessity of a separate direction being issued by the Panel to Council in respect of each tactical or forensic decision it wishes to make in the proceedings.
Although it is not necessary to decide, I note that had I found that the SRJPP and the Panel were separate legal entities, I consider that this would have given more rather than less weight to the Panel's application for joinder. That is because I find the consideration of the matters raised by the Panel to be in the public interest and that in those circumstances, given the stated position of Council, the consideration of the issues raised could only have been effected by the Panel's joinder as a party to the proceedings. I also consider that would be an appropriate approach given that, by operation of s 64(1) of the LEC Act, s 2.12(4) of the EPA Act, and s 13A of the Interpretation Act, the Panel is taken to be the Crown.

The Expedition Motion

In the light of my findings above both in relation to the Joinder Motion and the Separate Questions and Costs Motion, there remains the Expedition Motion. The relevant principles in relation to determining whether or not to exercise the Court's discretion to grant expedition were set out by Young J (as his Honour then was) in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at [42]-[43].
The principles have been regularly adopted in this Court in the context of the power to expedite proceedings under s 61 of the CP Act and r 2.1 of the UCPR (Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116 at [10]; Marshall Rural Pty Ltd v Basscave Ltd [2015] NSWLEC 86 at [12]) and invite consideration of a number of factors including for present purposes, whether the litigation involves matters of public importance, whether the litigation has been delayed through no fault of the applicant, whether the applicant suffers hardship not caused through its own fault, whether the parties have proceeded up to the hearing of the motion for expedition with due speed, whether the parties are willing if expedition is granted to do all in their power to facilitate the expeditious preparation and conduct of the hearing, and whether one or more of the parties will suffer hardship.
Mr Nash indicated that the Panel neither consents nor opposes expedition, however accepts that if the Court made an order for expedition, the Panel would consent to orders providing for attention to interlocutory preparatory procedures within a "short period".
In the circumstances, I am satisfied that, considering the principles summarised above, and the somewhat unusual circumstances involved in this appeal, there are sufficient grounds to expedite these proceedings. Before stating my reasons, some background is appropriate.
As set out in the affidavit of Mr Martin Hay, a director of M.H. Earthmoving, the existing facility only accepts non-putrescible waste from a single source, being the Visy Paper Mill located at Tumut in New South Wales. The existing facility has specialist machinery purpose-built for handling material from the Visy Paper Mill, and the present maximum capacity of the facility will be reached in August or September 2018.
The current development application is the second lodged by M.H. Earthmoving for expansion of the non-putrescible waste facility following upon an earlier application lodged in 2015 which was refused in June 2016. There has already been considerable delay as a result of a number of requests for further information from various authorities (including the Environment Protection Authority, the Department of Primary Industries, the Office of Environment and Heritage, Council, and the SRJPP) as well as the somewhat unusual history of this litigation.
As a consequence, M.H. Earthmoving will suffer prejudice by further delay in relation to both employee and holding costs. In particular, the fact that, absent the proposed expansion of the facility sought in the DA, five out of the eight full time staff are unable to be actively engaged in the company's operations (although they are still employed) and that further delay is likely to lead to the termination of the employment contracts, leads me to find that M.H. Earthmoving would be commercially disadvantaged by further delay.
In the circumstances, I accept that M.H. Earthmoving has conducted itself reasonably in the proceedings and any delay occasioned in relation to the s 34 conciliation conference was beyond its control and note that M.H. Earthmoving has indicated that it is willing to take all steps necessary to ensure compliance with any abridged timetable to facilitate an expedited hearing. I further note that this is reflective of the view proffered by Mr Nash on behalf of the Panel, albeit that the Panel does not discretely consent to the application for expedition.
I find therefore that an order for expedition is appropriate.

Conclusion

I note that although order 3(a) in the Separate Questions and Costs Motion seeks an order that the matter go to a further s 34 conciliation conference, I was informed today by the legal representatives of each of the parties that they wish to dispense with further conciliation. In the circumstances that I have granted expedition and there has already been a conciliation conference, I am content to adopt that approach.
Given that I have found that the Panel should not bear M.H. Earthmoving's costs of the earlier, terminated conciliation conference because its conduct was not unreasonable, I do not consider there are grounds to make an order that it indemnify M.H. Earthmoving's costs of the matter as it proceeds. Similarly, I do not consider that any of the parties have conducted themselves unreasonably in the course of the hearing of the motions before me such that I would make an order for costs in circumstances where r 3.7 of the LEC Rules applies. Accordingly, I decline to make any order as to costs.
In the circumstances, it is appropriate to direct the parties to confer and agree appropriate directions for further preparation and hearing of the matter having regard to my findings and to grant leave to the parties to approach the Registrar for the allocation of a hearing date.

In Southern Regional Planning Panel's Notice of Notion filed 13 June 2018 ('Joinder Motion'): 1. Southern Regional Planning Panel is joined as a party to the proceedings.

In M.H. Earthmoving Pty Ltd's first Notice of Motion filed 15 June 2018 ('Separate Questions and Costs Motion'): 1. The separate questions posed in order 1 of the Notice of Motion are each answered in the affirmative.

In M.H. Earthmoving Pty Ltd's second Notice of Motion filed 15 June 2018 ('Expedition Motion'): 1. The matter is granted expedition. 2. The parties are directed to prepare agreed short minutes of order providing for the further preparation of the matter. 3. The parties are granted leave to approach the Registrar for the allocation of a hearing date.

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: 29 June 2018

Civil Procedure Act 2005(NSW)ss 56, 57, 61, 98

Interpretation Act 1987(NSW)ss 13A, 33, 53

(2013) 195 LGERA 170

(2008) 158 LGERA 224

(2007) 156 LGERA 125

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