Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 770 | Case summary

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:

(e) Figure 1 - EEC Drag Strip by Conacher Travers dated 22 May 2007 (which would need amendment to accord with the Lakesedge Engineering plan filed 12 November 2007); 20 The applicant had prepared a further amended species impact statement dated September 2007 which dealt with the relocation of the development outside of the endangered ecological communities. However, this draft amended species impact statement would need further amendment to address the further adjustments made to the development at the new location in the set of plans filed in Court on 12 November 2007. This could be done in a comparatively short time frame of a few weeks. 21 The applicant read affidavit evidence of various experts addressing the matters required by paragraph 29 of the Court's Practice Note - Class 1 Development Appeals. 22 The applicant submitted that it had only once before formally sought and obtained the leave of the Court to amend its development application and Class 1 application. That leave was granted by Jagot J on 24 March 2006. The amended development was the applicable development at the time of my determination of the separate question as to the existence of the endangered ecological communities on the site. It was not until after my determination of the separate question that the applicant sought leave to amend the development application and the Class 1 application again. This is the present notice of motion. This application is responsive to my determination. 23 The Council did not seriously contest that the amendments now sought by the applicant to the development application and Class 1 application did address the matters in paragraph 29 of the Court's Practice Note - Class 1 Development Appeals. The relocation of the development away from the areas in which the Court found the endangered ecological communities to exist would be beneficial in lessening the environmental impact on those communities. However, the Council foreshadowed that the amended development, in its new location, created other environmental impacts, including on Koala habitat. Nevertheless, the Council will be able to address these issues in due course. 24 The Council again expresses concern having regard to the past history of this matter that the applicant may make repeated applications in the future to amend. Council again submits that since 2004 the applicant has had the opportunity to put forward this latest proposal and even in the course of the current motion seeking leave to amend, numerous amendments have been made. 25 The Council submitted that any leave to amend should be made conditional on both a costs order (for past costs) and an order for security of costs (for future costs). I will deal with these questions of costs shortly. 26 I am satisfied that the applicant should be given leave to amend the development application and the Class 1 application generally in accordance with the plans filed in Court on 12 November 2007, with the necessary consequential amendments to bring about consistency between the plans. Such amendments are responsive to the Court's determination of the separate question. The amendments move the development away from the location of the endangered ecological community. In that regard, the amendments lessen the environmental impact. It may be that the new location of the development creates other consequences, as the Council has foreshadowed. Such consequences will need to be addressed in due course and at the hearing. Ultimately, whether the amendments now proposed go far enough to make the development an acceptable development will be for the Court to determine in due course. 27 The history of the matter does, however, warrant imposing terms on any grant of leave to amend. One term should be to regulate any further amendment. In Marinkovic v Rockdale City Council [2006] NSWLEC 601, where there had also been a long history of delay in prosecuting the appeal and multiple amendments of the application, I sought to regulate future amendments by making an order in the following terms: "No further amendments on the development application will be allowed without the express leave of Preston CJ or other judge if he is unavailable. Such leave is to be sought by way of Notice of Motion together with supporting Affidavit in accordance with paragraph 3 of the Court's Consolidated Court Appointed Expert Standard Direction No. 1." 28 I consider that such an order is also appropriate in this case, although the reference to the applicable standard direction should be amended to refer to paragraph 29 of the Court's Practice Note Class 1 - Development Appeals. 29 I also consider that the Court should impose terms on the grant of leave to amend as to costs. For reasons I will explain, the costs order should be that the applicant pay both the Council's costs of the application for leave to amend and the costs of and occasioned by the amendment. I will now deal with this issue. Application to pay costs 30 The Council seeks an order that the applicant pay its costs of the proceedings to date, other than those that relate to traffic impacts. The Council submits that such an order is necessary to compensate the Council for the costs it has incurred to date by reason of the applicant's conduct. The Council relied on my order to that effect in Marinkovic v Rockdale City Council [2006] NSWLEC 601. 31 The applicant submits that it would not be fair and reasonable to make an order for costs as this stage in the proceedings. The proceedings have not yet been concluded. It is premature to make an order for costs. All of the factors relevant to the exercise of the discretion under s 69(2) of the Land and Environment Court Act 1979 and Pt 16 r 4(2) of the Land and Environment Court Rules 1996 are not yet known, including importantly, the outcome of the proceedings. 32 I consider that the applicant should pay the respondent's costs of and occasioned by the amendment of the development application and hence the Class 1 application. This is an appropriate term to impose on the grant of leave to the applicant to amend its development application and Class 1 application. 33 The amendment, as I have noted, relocates the development wholly outside of the areas in which the Court found the endangered ecological communities to exist. If this amended development had been originally proposed, there would have been no need to determine the separate question of whether the vegetation communities in these areas are endangered ecological communities. 34 As I have earlier indicated, the parties sought and the Court ordered the separate question, on the basis that, if the vegetation communities are endangered ecological communities, the development was likely to significantly affect the endangered ecological communities and a species impact statement would therefore be required. If, however, the development were to be located outside the areas in which the alleged endangered ecological communities were located, there would not be a significant effect on those communities and no species impact statement would be required. Hence, the necessity for the separate question arose only because the applicant proposed development in the areas of the alleged endangered ecological communities. 35 The applicant now proposes moving the development wholly outside of the areas of the endangered ecological communities. By the amendment now proposed, the hearing and determination of the separate determination has been rendered nugatory. It is of no utility to the amended development in the new location. 36 In these circumstances, it is fair and reasonable that the Council be compensated for the costs of the hearing and determination of the separate question necessitated by the applicant's then proposed development application and Class 1 application. Those costs have been thrown away by reason of the amendment. Indeed, the Council's costs thrown away by reason of the amendment probably go further than just those associated with the hearing and determination of the separate question. The Council's preparation of its case to date has been orientated towards meeting the applicant's then proposed development, significant components of which, including the drag strip, were located in the areas of the endangered ecological communities. The Council's preparation of its case and its evidence were directed to meeting that development in that location. 37 By reason of the proposed amendment, a part of that preparation and evidence may be thrown away. It is not possible for me to determine how much preparation and evidence may be thrown away by reason of the proposed amendment. That will be a matter for assessment by a taxing officer. It is sufficient to note that it is likely that part of the Council's costs to date will be thrown away by reason of the amendment. 38 The next question is whether the Council should be given leave to proceed to an assessment of costs forthwith. Ordinarily, an order for costs of an interlocutory proceeding should not entitle a party to have a bill of costs assessed until the principal proceedings in which the interlocutory order was made is concluded. However, the Court does retain a discretion to depart from this general practice and may order that the costs may be assessed forthwith. Factors which have led courts to depart from the general practice include:

Motorplex (Australia) Pty Ltd v Port Stephens Council

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Cases Cited (15)

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