1 HIS HONOUR: These proceedings, involving an appeal under s 97 of the Environmental Planning and Assessment Act 1979, have yet to come on for a hearing, notwithstanding that they were commenced in 2004. There has been a hearing and determination of a separate question: Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74 (16 February 2007). However, this did not resolve the proceedings but instead has led to further dispute. As a consequence, the parties have filed rival notices of motion.
2 The applicant's notice of motion dated 2 July 2007 seeks for the Court, pursuant to s 39(2) of the Land and Environment Court Act 1979, to exercise the Council's powers under clause 55 of the Environmental Planning and Assessment Regulation 2000 to amend the applicant's development application and hence the applicant's Class 1 application to the Court. The amendments sought by the applicant have continued to change since the motion was filed, however, by the time of the last hearing date of the applicant's motion on 12 November 2007, the amendments sought are as shown generally in a set of plans and documents filed on that day (although if leave be granted by the Court further amendment of these plans and documents would be required to bring consistency between them).
3 The Council's notice of motion dated 31 July 2007 seeks three sets of alternative orders. The first set is that the whole proceedings should be dismissed with costs.
4 The second set of orders is that the applicant should pay the Council's costs of the proceedings to date, except insofar as those costs relate to traffic impacts. This order, as explained later, assumes that the proceedings are not dismissed and addresses the applicant's motion for leave to amend the development application and the Class 1 application. The Council seeks such a costs order as a term of leave being granted to amend the development application and the Class 1 application. The Council also seeks, in relation to any such order for costs, that the Council have leave to proceed to an assessment of its costs forthwith.
5 The third set of orders is that the applicant provide security for the Council's costs of the proceedings. Evidently, this order also assumes that the proceedings are not dismissed.
6 The Council also seeks its costs of its motion, assuming it is successful in one or other of these ways.
7 The logical order to deal with these rival applications by the parties is to deal with, first, the Council's application that the proceedings be dismissed; secondly, the applicant's application to amend the development application and the Class 1 application; thirdly, the Council's application that the applicant pay the Council's costs to date and have leave to proceed to an assessment of those costs forthwith; and fourthly, the Council's application that the applicant provide security for costs. The costs of the respective motions can then be determined.
Application for dismissal of proceedings
8 The Council submits that there has been unreasonable delay in the prosecution of the proceedings, having been commenced on 28 October 2004; the applicant ought to have lodged a proper development application and Class 1 application from the outset but did not do so; the Council has been put to a wholly unreasonable degree of cost by reason of the lack of a proper development application and Class 1 application and the conduct of the applicant in prosecuting its appeal in the Court; and the separate question determined by the Court as to the existence of endangered ecological communities on the land was meant to be dispositive of the proceedings but has not proved to be because the applicant now seeks to amend the development application and Class 1 application. The Council relied on affidavit evidence, including of the Council's solicitors, chronicling the long and costly saga from the commencement of the proceedings to date.
9 The Council submits that, having regard to the past history of the proceedings, there is a real prospect that the applicant may continue to conduct itself in the way it has in the past, including making repeated applications to amend. The applicant has taken since 2004 to put forward this latest proposal for the development and, even in the course of the applicant's motion seeking leave to amend, numerous amendments have been made. Indeed, the most recent version still needs further adjustment to bring about consistency between the plans provided to the Court. The Council submits that the applicant should not be given any further indulgence by the Court.
10 In these circumstances, the Council submits that the Court should dismiss the proceedings. This action would allow the applicant to lodge a fresh development application, incorporating the most recent proposed amendments, with the Council. If the Council determined to refuse any such application, the applicant could appeal again to the Court against such decision of the Council. The Council submits that this is the proper course rather than seeking to retain the current proceedings.
11 The applicant submits that there is no warrant in the circumstances to dismiss the proceedings. The parties both sought and the Court agreed to order that the question of whether endangered ecological communities occur on the land be heard and determined separately from other questions in the proceedings. The relevance of this question was that if endangered ecological communities occurred on the land, the development as then proposed was likely to significantly affect the endangered ecological communities, as substantial components of the development (including the drag strip) were located in the areas of the alleged endangered ecological communities and a species impact statement would therefore need to be prepared under the Environmental Planning and Assessment Act 1979. If a species impact statement was required to, but did not, accompany the development application, the Court, exercising the functions of the consent authority, would not have jurisdiction to determine the applicant's Class 1 application: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. Accordingly, the parties sought and the Court agreed to order the question of the existence of the endangered ecological communities on the land be heard and determined as a separate question.
12 I heard that question and determined that three endangered ecological communities occurred in areas on the land and found that their location was depicted on a map to which I referred: see Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74 (16 February 2007).
13 In response to that determination, the applicant sought to amend its development so as to move components of the development, including importantly the drag strip, wholly outside of the areas where the endangered ecological communities were found to exist. The applicant submits that the amendment is responsive to the Court's decision and seeks to lessen the environment impact of the development and otherwise lead to an improved community outcome. Such a response, the applicant submits, is proper and ought to be expected. The Court should deal with the application to amend. If the Court was minded to grant leave to amend, there is no justification to dismiss the proceedings. The Court could condition any grant of leave to amend.
14 I consider that the Council has not made out a case for the proceedings to be dismissed summarily at this stage. The proceedings have certainly been protracted and costly to both parties. Nevertheless, the solution is not to dismiss the proceedings and put the parties to the respective cost of lodging and determining a fresh development application and appealing and defending any decision to refuse that development application. Rather, the proceedings should be subjected to concerted case management with the goal of bringing the proceedings on for a final hearing as soon as is reasonably practicable. Questions of costs, both to date and in the future, can be dealt with without dismissing the proceedings.
15 The applicant has formulated an amended development to respond to the Court's determination of the separate question by moving the development out of the areas in which the endangered ecological communities were found to exist. The Council foreshadows that there may still be indirect effects on the endangered ecological communities and that the new location of the development has its own problems, particularly associated with being Koala habitat. Nevertheless, I agree with the applicant that it is reasonable for it to respond to the Court's determination of the separate question in the way it has by amending the development so as to relocate it away from the endangered ecological communities.
16 In Marinkovic v Rockdale City Council (No 2) (2007) 151 LGERA 385, I allowed amendments to plans that were responsive to a Commissioner's interim judgment, notwithstanding that on a previous occasion the long and tortuous history of the proceedings caused me to order the applicant to pay costs in relation to that history: see Marinkovic v Rockdale City Council [2006] NSWLEC 601. In the second decision, I noted that there should be a capacity for an applicant in Class 1 proceedings to respond to the changing circumstances that evolve in the course of the proceedings. I said:
"[21] In Aldi Foods Pty Limited v Holroyd City Council (2005) 142 LGERA 141, Talbot J noted that the generation of amended plans as a consequence of an evolutionary process involving management techniques adopted by the court and the appointment of a court appointed expert is not necessarily of itself a matter for adverse comment in respect of reasonableness in the context of a costs application: at 14.
[22] There should be a capacity for an applicant in class 1 proceedings before the Court to amend its application to respond to evidence, including evidence of a court appointed expert, and to address concerns of the court that is hearing the appeal. A respondent council should expect that an applicant might need to respond in this way. That is to say, such amendments should be seen to be part of the usual process of conducting a class 1 appeal in this Court. The mere making of an amendment is not by itself a circumstance that always makes it fair and reasonable to make an order for costs.
[23] Of course, there must be some limit placed upon this capacity to respond to evidence and to the Court's concerns by means of an amendment. This case is a good illustration. The multiple amendments that were made by the applicant prior to 19 September 2006 is an illustration of where an applicant has stepped outside what can be reasonably expected in the usual conduct of a class 1 appeal."
17 Similarly, in this case, it ought to be expected that the applicant would respond by amending its development so as to eliminate or lessen the environmental impact of the development on the endangered ecological communities that the Court found, contrary to the applicant's argument, to exist on the development site. It would not be proper to dismiss the proceedings because the applicant has now done so.
18 Accordingly, I decline to dismiss the proceedings summarily at this stage.
Application to amend
19 The applicant seeks leave to amend the development application and the Class 1 application in terms of the plans filed in Court on 12 November 2007, with foreshadowed further amendments to bring about consistency between the plans. The set of plans are: