North Lismore Plateau Association Inc v Lismore City Council

Agreed facts

1. Both parties filed competing statements of facts in the proceedings. The facts that are agreed between both parties are summarised below.
2. Winten lodged development application 5.2020.462.1 (the DA) with the Council on or about 3 November 2020 seeking the approval of an 85-lot residential subdivision of the Site.
3. The DA was placed on public exhibition between 2 December 2020 and 21 January 2021. During that period, electronic versions of the documents forming part of the DA were made publicly available for inspection on the Council's website.
4. The documents forming part of the DA included: 1. Aboriginal Cultural Heritage Assessment (ACHA) dated 23 October 2020; 2. Cultural Heritage Management Plan dated 23 October 2020; 3. Ecological Assessment dated 23 October 2020; 4. Flood Impact Assessment dated 22 October 2020; and 5. Stormwater Management Plan dated 23 October 2020.
5. The Applicant did not make a submission in relation to the DA.
6. Mr Michael Ryan, who is a member of the Applicant, registered his interest in the DA as a Registered Aboriginal Party (RAP). Mr Ryan did not make a submission in relation to the DA.
7. Mr Alan Oshlack, who is a member of the Applicant, made a submission in relation to the DA.
8. An archaeological test excavation is purported to have occurred on 24 June 2021. No Aboriginal Heritage Impact Permit (AHIP) was obtained for this excavation.
9. A revised ACHA was completed in July 2021. Neither the original nor the revised ACHAs were provided to RAPs in draft form prior to their submission to the Council.
10. Winten provided revised documentation to the Council on or around 9 July 2021. This revised documentation was not publicly notified by the Council.
11. Mr Oshlack was notified that the DA would be considered at a Council meeting on 14 September 2021. Mr Oshlack attended that meeting.
12. The Current DA was approved, subject to conditions, at the Council meeting on 14 September 2021.

Applicant's additional facts

1. The Applicant included the following additional facts in its statement of facts that were not agreed. The Court indicated it was prepared to decide these notices of motion on the assumption that the Applicant would be able to provide evidence (not submissions) supporting these facts in the primary proceedings.
2. The DA was not placed on display at the Council Corporate Centre at 43 Oliver Avenue Goonellabah, as notified in the Local Matters newsletter.
3. The location of the purported test excavation that occurred on 24 June 2021 was in close proximity to a known and documented conflict site and possible burials.
4. After receiving the revised documentation from Winten on or around 9 July 2021, a request for further information was made by the Council on or about 11 August 2021. Winten responded to the Council's request on 20 August 2021. This documentation, as well as that provided by Winten on or around 9 July 2021 was not publicly notified nor made available to the RAPs or objectors.
5. Mr Oshlack made an oral submission to the Council in relation to the DA at the meeting on 14 September 2021.
6. In granting consent the Council did not assess or approve the fill and associated earthworks abandoned on the Site from a previous development consent declared on 14 May 2020 by the Court to have been invalidly made, void and of no effect.
7. The Site was inundated in the Lismore February 2022 floods, and the Dunoon Road access to the Site was inundated and impassable during both the 2017 and 2022 floods.

Evidence

1. Evidence was adduced by Winten by way of affidavit from a number of persons who also produced a large volume of documents. The evidence, by way of summary, was: 1. Affidavit of Ms Renner 31 March 2022. Ms Renner is the solicitor for Winten. Ms Renner deposed as to the history of the DA including past challenges to past DAs relating to the Site. She also deposed as to the lodgement of the DA and its progress through the Council including the amendment to the DA. Ms Renner also gave evidence relating to the cost of delay of the DA and the anticipated costs of the proceedings. Exhibited to her affidavit were a large volume of documents (over 500 pages) relating to the matters deposed to in her affidavit. 2. Affidavit of Sue Thatcher 25 March 2022. Ms Thatcher is the Senior Development Assessment Officer of the Council. In her affidavit she deposed as to the lodgement and assessment of the DA including the process of community consultation and amendment of the DA by Winten prior to its determination. Exhibited to her affidavit was: 1. The Council's Community Participation Plan (the Plan); 2. Preliminary assessment form used in the assessment of the DA; 3. Template letter inviting submissions to the DA and a list of recipients of the letter; 4. Copies of the Applicant's submission to the DA; 5. Copy of the notification of the DA in the local newspaper; 6. A table prepared from the Council's records indicated the date of receipt of documents as part of the DA assessment and whether the document was made public if at all; 7. Copies of submissions received; 8. Details of meetings and correspondence with North Lismore Plateau RAPs; 9. The DA assessment report; and 10. Notification of determination of the DA. 1. Affidavit of Sue Thatcher 31 March 2022. Ms Thatcher deposed to the process of the amendment of the DA by Winten and the formation of the opinion by her that the amended DA did not require renotification under the Plan.
2. Ms Renner and Ms Thatcher were cross-examined by the Applicant.
3. The Applicant also tendered evidence by way of documentary material relating to the archaeological assessment and historical records of past conflict in the locality.

Applicable legal principles

1. Winten relied upon the provisions of UCPR r 13.4 to summarily dismiss the proceedings or in the alternative UCPR r 14.28 to strike the proceedings out, which provision are in the following terms: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
2. With respect to each of these provisions Winten contended that the Further Amended Summons disclosed no arguable cause of action and was "entirely devoid of merit".
3. The principles to be applied in the determination of an application such as the present were identified and restated in Dolton v Eurobodalla Shire Council [2020] NSWLEC 141 at [19]-[22] by Pepper J, which I gratefully adopt, as follows: 19 The legal principles applicable in the exercise of the Court's power to summarily dismiss proceedings may be briefly stated as follows: (a) the power to dismiss proceedings without a substantive hearing should only be exercised in "plain and obvious" cases, that is, where the applicant's case is "so clearly untenable that it cannot possibly succeed" (General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129-130). There must be "a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way" (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]. This formulation was adopted in Batistados v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256; (2006) 80 ALJR 1100 at [46], Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24] and Shaw v New South Wales [2012] NSWCA 102; (2012) 219 IR 87 at [30]); (b) the Court cannot dismiss an action "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it" (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 and Spencer at [54]-[55]); (c) allegation of fact contained in an application or pleading relevant to the causes of action should be assumed to be established. Great caution must be exercised in dismissing a case summarily "where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact" (Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 603); and (d) the Court is not precluded from hearing argument, even if extensive, in determining whether or not the plaintiff's case is untenable (General Steel at 130). 20 In NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; (2011) 181 LGERA 166 Craig J relevantly said (at [14] - [18]): 14 The principles to be applied when determining the Minister's application are not in dispute. The power to strike out a pleading on the basis that it discloses no reasonable cause of action is a power to be exercised sparingly and only where the absence of a reasonable cause of action is "plain and obvious" (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). 15 The strictures attending an application summarily to dismiss proceedings have recently been reiterated by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118. Although the court was there concerned with the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth), authorising summary dismissal of proceedings where the court is satisfied that a party "has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding", the caution necessary to be exercised before striking out a pleading was emphasised in the joint judgment of French CJ and Gummow J where their Honours said (at [24]): 24 The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. 16 The principles applicable to the application of UCPR 13.4 and 14.28 were usefully summarised by Rein J in Hoxton Park Residents' Action Group Inc v Liverpool City Council (2010) 178 LGERA 275 at [14]. I will not repeat what his Honour there said. Relevantly, those principles include the propositions that: (i) allegations of fact contained in the pleading are assumed to be established for the purpose of considering the strike out application, and (ii) notwithstanding the caution to which I have earlier referred, applicable to the exercise of the power, a court is not precluded from entertaining extensive argument when determining whether the pleading discloses a reasonable cause of action (General Steel Industries at 130). 17 It will be remembered that the basis upon which the respondents seek to strike out the negligent misrepresentation claim is that this Court lacks jurisdiction to entertain it. An application so founded involves considerations of a different kind. 18 When the jurisdiction of the Court to entertain a particular cause of action is challenged, the Court is required to satisfy itself that it has jurisdiction before proceeding further with the hearing of the proceedings (R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215 per Gibbs J; National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585; 71 LGRA 286 at 297 per Kirby P. Moreover when that question is raised, it is incumbent upon the party invoking the Court's jurisdiction to demonstrate that such jurisdiction exists (Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 426; Meehan v Commissioner of Police (1999) 47 NSWLR 284 at [4]). 21 Although his Honour's remarks were made in the context of an application to strike out pleadings, they are no less apposite to the present exercise by the Court of its power to summarily dismiss proceedings on the basis that it has no jurisdiction to entertain them. 22 More recently, in Ugur v Attorney General NSW [2019] NSWCA 86 White JA stated (at [70]-[71]): 70 One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications. 71 The lack of a tenable cause of action must be clearly demonstrated. Various formulations have been used to describe the clarity that must exist before a claim can be summarily dismissed (see for example, Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 ("Dey"); General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 128-129; Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] ("Spencer v Commonwealth"); and O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [67].) If there is a real question either of fact or of law, then the application for summary dismissal must fail (Dey v Victorian Railways Commissioners at 91).

Winten's submissions

1. Senior Counsel for Winten made both written and oral submissions in support of the Respondent's Notice of Motion. The submissions traversed each of the claims in the Further Amended Summons and detailed the basis upon which Winten contended that the claim did not disclose a reasonable cause of action.
2. I briefly summarise Winten's submissions in so far as they responded to the Applicant's formulation of its case as referred to at [40] below as: 1. Ground 1 - The allegation relates to a failure to notify the further documentary material but does not particularise any breach of a mandatory statutory requirement. However, as is evidenced, the requirement to notify DAs under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) in the circumstances of this case relates to notification in accordance with the Plan and the requirements of the Plan were met. The reliance upon the Code is misplaced as the Code is only required to be complied with if an AHIP is sought. No AHIP was sought for this DA, nor was one required. In any event the failure to obtain an AHIP or to comply with the Code where it is mandatory is a matter relating to the operation of the NPW Act and not a breach of the EP&A Act as is pleaded. 2. Ground 2 - There is no obligation to comply with the Code where no AHIP is required. In this case no AHIP is required, and the Applicant has not identified any circumstance that an AHIP was otherwise required. The complaint is in truth one of dissatisfaction as to the merit outcome of the determination of the DA. In this case, as the expert archaeologist has stated that the Site was investigated, the Applicant cannot succeed on this complaint. As to the test excavations the allegation that they were not undertaken (which is wrong in fact) or were not undertaken to the Applicant's satisfaction does not give rise to a claim for judicial review of the grant of the development consent. 3. Ground 3 - The ecological report did describe the native vegetation proposed to be removed and undertook the relevant assessment required. Any contention relating to this factor is a matter relating to the merits of the DA and does not identify a relevant breach that would found a cause of action for judicial review of the grant of development consent. 4. Grounds 4, 5 and 6 - The issue of flooding is a broad matter for consideration. The consideration by the Council of the materiality of the impact on downstream properties cannot be irrelevant in the relevant sense. The evidence discloses that the Council did in fact consider the 20, 50 and 100-year events so there is no basis on which to contend that the Council failed to take this issue into account. The 2022 flooding event cannot be relevant to a decision that was made in 2021. 5. Ground 7 - The fill is not "unlawful" in the relevant sense as it was undertaken under a previous consent that was later declared invalid. As the work has been undertaken it is not possible to obtain retrospective approval for the placement of the fill. The Council, as is demonstrated by the evidence, did assess the impact of the retention of the fill and any works proposed to alter or add to it. There can be no foundation for the assertion that the Council failed to take into account this matter.
3. There being no reasonable cause of action disclosed in any of the grounds in the Applicant's Further Amended Summons the orders sought in the Respondent's Notice of Motion should be made.

Applicant's submissions

1. The Agent for the Applicant also provided detailed written and oral submissions in opposition to the Respondent's Notice of Motion. The primary submission was that the Further Amended Summons disclosed clear disputed issues and real questions to be tried such that the Further Amended Summons should not be dismissed consistent with the principles outlined in Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971 (Spiliotopoulos) at [3]-[6] which states: 3 The principles governing summary dismissal are well established and may be summarised as follows. 4 The power to dismiss proceedings without a substantive hearing should only be exercised in "plain and obvious" cases, where the plaintiff's case is "so clearly untenable that it cannot possibly succeed": General Steel Industries v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 129-130 per Barwick CJ. 5 The power to terminate an action summarily should not be exercised in cases where "the ultimate outcome of the case depends upon the resolution of some disputed issue or issues of fact": Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57 at 603 per Mason CJ. Accordingly, if any consideration of factual evidence is required in assessing whether a plaintiff has a claim, summary dismissal will not be appropriate. 6 The exercise of the power is always to be "attended with caution" and "great care" and is one that should only be exercised where it is clear that "there is no real question to be tried": Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at 131 [24] per French CJ and Gummow J.
2. It was submitted that both the extensive amount of evidence and submissions that were relied upon for the Respondent's Notice of Motion is demonstrative that there are real issues in dispute between the parties that should be determined at a final hearing and not ruled upon in an interlocutory application such as this.
3. What Winten is demonstrating is not that there is no reasonable cause of action but that it has an arguable defence to the causes of action articulated in the Further Amended Summons. The Respondent's Notice of Motion is no more than an attempt by Winten to thwart the legitimate processes of the Court and the right of a party to seek judicial review proceedings to have a decision set aside.
4. The Agent for the Applicant was taken through the pleadings and his submissions and asked by the Court to explain what the claim as pleaded actually related to so that the determination of this motion could be made on the substance of the claims rather than any pure point of pleading or lack of precision of language and drafting. In that regard it was explained that (by reference to the grounds particularised in the Further Amended Summons): 1. Ground 1 raises the claim that the Council was required to exhibit the amendments to the DA and it failed to do so. Such failure renders the development consent invalid either because it denied the Applicant procedural fairness or because it breached a statutory requirement for notification. The requirement for notification was either the Plan and/or the requirement to consult for the ACHA in accordance with the requirements of cll 14(5) and 15 of the Code. This ground reflects the same allegations requiring renotification as appeared in Grounds 1, 2 and 3. 2. Ground 2 related to an allegation of insufficient assessment of the Aboriginal cultural heritage impacts. The Applicant proposed to call evidence from both lay and expert witnesses relating to this ground. This ground relates to the adequacy of Winten's ACHA with respect to the: 1. Assessment of the Site itself as opposed to broadscale reports of larger areas; 2. Assessment of the proximity of potential conflict sites; and 3. The adequacy of archaeological test excavations undertaken on the Site and whether an AHIP was required to undertake the test excavations. 1. Ground 3, (in addition to the requirement to exhibit the later ecological report that is dealt with in Ground 1) claimed that the further ecological report had failed to identify what native vegetation was in fact to be impacted by the DA. The Applicant proposed to adduce expert ecological evidence relating to the impacts of the DA on the native vegetation and identify the defects in Winten's ecological report. 2. Grounds 4, 5 and 6 claimed that the Council either took into account an irrelevant consideration or failed to take into account a relevant consideration in that: 1. It considered that the flood impact was affected by an assertion that the lower catchment would already be inundated by water and, therefore, the additional flows from the development would not be noticeable; 2. The Council failed to consider the flood impact and stormwater discharge at the 20, 50 and 100-year flood events; 3. The Council's assessment of flood impacts was proven to be inaccurate by the fact of the flood behaviour in the February 2022 floods; and 4. The Applicant proposes to call expert evidence to support this claim. 1. Ground 7 relates to the remnant fill that was placed upon the Site as part of works undertaken under a prior consent that has been held to be invalid. It is asserted that the Council has failed to assess the impact of that fill placed upon the Site in the context of this DA or that it has failed to approve the retention of the fill as part of this DA. Absent such determination the DA is unable to proceed as it relied upon the illegal placement of fill and its assumed retention as part of this DA.

Determination

1. In determining this matter, as indicated above, I have done so on the basis that the Applicant will be able to establish by evidence any relevant factual matter identified in its statement of facts. I have further proceeded to consider the Further Amended Summons as including the explanation and expansion given in oral submissions and identified above. I do not make this determination on any strict point of pleading or imprecision of drafting but rather a consideration of the Applicant's case put at its highest as a combination of the pleadings and the oral submissions made at the hearing of the Notice of Motion. This approach of focussing on substance rather than form in instances where there is an inadequacy in the pleadings has recently been confirmed in the Court of Appeal: see Chalek v G&G Mikhael Pty Ltd [2022] NSWCA 116 at [18].
2. In that context, however, it is not open to me to approach the matter by considering whether I consider that the Applicant may have causes of action not pleaded - this Notice of Motion relates only to the causes of action articulated by the Applicant. Further, in determining the application I am not expressing a view as to whether the Applicant's cause of action as pleaded is likely to succeed but rather whether it is "so clearly untenable that it cannot possibly succeed".
3. As outlined in the relevant applicable principles, a finding that a proceeding should be summarily dismissed or a Summons (or part thereof) should be struck out should only be exercised in plain and obvious cases where the Applicant's case is so untenable that it cannot possibly succeed. However, as was observed in Spiliotopoulos at [7]: 7 However, notwithstanding the high bar that a defendant must meet, the power summarily to dismiss a claim is an important power in facilitating the efficient administration of justice by removing unmeritorious proceedings from the Court system, and it will be appropriate to make the order (in the proper case) even if extensive legal argument is necessary in order to demonstrate the hopelessness of a claim.
4. It is appropriate that I consider each of the grounds separately, or as grouped together by the Applicant, as to at least some extent each ground raises a different claim or consideration.

Ground 1

1. This ground relates to the additional material provided to the Council by Winten in support of its amendment to the DA which material, it is an agreed fact, was not exhibited to the public. It is contended that if the material was part of the original DA, it would have been required to be exhibited pursuant to the Plan. The dispute between the parties is whether the material should have been re-exhibited notwithstanding the provisions of cl 19 of the Plan that provides: An applicant may amend an application at any time before Council has made its decision with the prior agreement of Council staff. If, in Council's opinion, the amendments are considered likely to have a greater adverse effect on or a different adverse effect on adjoining or neighbouring land, then Council will renotify: • Those persons who made submissions on the original application; • Any other persons who own adjoining or neighbouring land and in the Council's opinion may be adversely affected by the amended application; • Where the amendments in the Council's opinion do not increase or lessen the adverse effect on adjoining or neighbouring land, or only provides additional information, Council may choose not to notify or advertise the amendments.
2. The Applicant does not contend that the action undertaken by Winten was not an amendment to the DA to which this provision of the Plan applied nor does it contend that the relevant opinion required by this clause was not formed. The evidence of Ms Thatcher is that she was the person who formed such opinion. The allegation seems to be that notwithstanding the provisions of the Plan the material should have been renotified as to fail to do so was to deny procedural fairness to the members of the public who may have wished to make further submissions on this material prior to the Council determining the DA. This expectation is said to arise from a combination of the fact that the Council called for submissions knowing that it was likely that the material upon which the submissions were based would be amended or supplemented as the Council itself had requested further information to enable its assessment of the DA.
3. The Applicant was unable to identify any statutory requirement for renotification where the DA was amended. Further, the Applicant was unable to identify any foundation for an expectation of notification in excess of the statutory requirements. The Applicant's claim appears to be one of a general complaint of fairness in the loose sense. Absent some particularisation of the right to be notified that was breached, the broad assertion of a denial of procedural fairness cannot be sustained.
4. The alternative assertion is that the ACHA was required to be notified in so far as it was necessary that the report be provided to the RAPs for comment prior to submission to the Council in accordance with the provisions of cll 14(5) and 15 of the Code and an absence of notification denied the Applicant procedural fairness. There are a number of issues that arise in relation to this contention: 1. Firstly, the Applicant is not a RAP and, therefore, even if there was an obligation to consult with RAPs it would not have included the Applicant or the public at large and therefore such failure would not have denied the Applicant procedural fairness. 2. Secondly, the provisions of the Code do not in terms apply to the preparation of an ACHA where an AHIP is not being sought. In this DA no AHIP was sought. Whilst the Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010 (ACHCRP) recommends the level of consultation for an AHIP to be undertaken in ACHAs that do not include an AHIP, such is not a mandatory requirement. 3. Thirdly, the Applicant contended that adopting the recommendation created an expectation that RAPs would be consulted prior to submission of the final assessment report, and this was not done and, therefore, there was a denial of procedural fairness to the Applicant. Again, the Applicant not being a RAP could not have had an expectation of consultation nor be denied procedural fairness if consultation of RAPs did not occur. 4. Finally, it was not identified how any breach of either the Code or the ACHCRP could relevantly be a breach of either the EP&A Act such that it would operate as a basis to invalidate a development consent granted under that Act, or a breach of the NPW Act (a breach of which Act is not pleaded) which breach would not be within the Court's jurisdiction pursuant to s 20 of the Land and Environment Court Act 1979 (NSW) as neither the Code nor the ACHCRP imposed mandatory requirements for this type of assessment report.
5. For each of those reasons, Ground 1 on either alternative basis does not disclose a reasonable cause of action.

Ground 2

1. This ground relates to the adequacy of Winten's ACHA with respect to the: 1. Assessment of the Site itself as opposed to broadscale reports of larger areas; 2. Assessment of the proximity of potential conflict sites; and 3. The adequacy of archaeological test excavations undertaken on the Site and whether an AHIP was required to undertake the test excavations.
2. Contrary to the submission that the Site itself was not examined for the purposes of assessing the impact of the DA the ACHA states clearly that the Site was in fact examined. In addition, the expert identifies particular landforms on the Site itself. On that basis this claim cannot succeed.
3. As to the suggestion that the Site is located in proximity to a conflict site within the meaning of the Code, the fact of the conflict site is known and has been the subject of discussion in the previous studies which were considered for the purposes of preparing the ACHA. This concern seems to suggest that either an AHIP is required due to the proximity of the Site to the conflict site or that the conflict site needs more analysis. Each of these complaints relate to the compliance with the requirements of the Code, which as observed above are not mandatory in the present case. Further, the Applicant itself does not assert that the Site is within the area of the conflict site but rather that it is "in close proximity to a known and documented conflict site and possible burials". Even if the Code did apply the location of the Site is not asserted to be within 50m of a known burial site or in areas known or suspected to be conflict sites and, therefore, the Code would not mandate an analysis other than that which has been undertaken.
4. The complaint about the test excavations not occurring at all cannot be sustained in light of the photographs of the test pits and the report that accompanied them. The allegation that the test pits were inadequate is a bare allegation without identifying a cause of action. If it relates to a breach of the Code, no basis has been identified as to how such a breach could invalidate the decision to grant the development consent, which is the decision upon which the Applicant seeks judicial review.
5. The suggestion that the Applicant wishes to call evidence on these matters does not disclose a real dispute of facts in issue but merely a dispute as to the experts' conclusions. Mere contrary opinion is not demonstrative that there is a dispute as to a fact in issue as the dispute must be linked to the cause of action pleaded, not merely a dispute at large. The Applicant on this ground has not identified a relevant cause of action to which this complaint relates.
6. For each of those reasons, Ground 2 on any of the alternative basis does not disclose a reasonable cause of action.

Ground 3

1. To the extent that this ground asserts a failure to notify the report that formed part of the documentary material provided to the Council in the amendment to the DA, this aspect is dealt with in connection with Ground 1 above and does not raise any different or other consideration that requires determination.
2. Where it is contended that the further ecological report fails to describe what native vegetation is to be impacted by the consent (as distinct from the quality of that description or the veracity or merit of the opinions expressed), this is not borne out on the evidence. The identification of the description of native vegetation to be impacted by Winten is contained at folio 57 of Exhibit 3, which material was before the Council, and is a complete answer to this ground as pleaded. Accordingly, this part of the ground does not disclose a reasonable cause of action and this part of Ground 3 should be summarily dismissed.
3. The assertion by the Applicant that it proposes to call evidence as to the appropriateness of that description or the adequacy of the ecological assessment, and that this discloses a disputed fact between the parties is not of itself sufficient to disclose a reasonable cause of action. Rather, in light of the manner in which this ground is pleaded, it identifies a dispute other than that pleaded, which is not a matter that I am able to take into account in that it is not a matter currently pleaded or that goes to a matter currently pleaded.
4. For each of those reasons, Ground 3 on either alternative basis does not disclose a reasonable cause of action.

Grounds 4, 5 and 6

1. These grounds relate to the taking into account of an irrelevant consideration or failing to take into account a relevant consideration with respect to flooding. Where it is asserted that a relevant matter is not taken into account that matter must be a mandatory relevant consideration, and where a matter is said to be irrelevant it must be beyond the scope of considerations that could reasonably relate to the consideration undertaken. The underlying merits of matters upon which a decision-maker may have formed a view are not open to challenge in judicial review proceedings as was stated in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. … The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
2. As to the allegation that the Council failed to take into account the impacts of the development on flooding and stormwater in the 20, 50, and 100-year events Winten identified the parts of the Council's assessment where such analysis was available to the Council as part of its decision-making process: see folios 310-314, 386, 439 and 440 of Exhibit 1. This ground, in so far as it asserts a failure by the absence of evidence that the Council took this matter into account (as distinct from the quality of that consideration), the identification of the material in the material before the Council and the identification of the evidence that the Council had regard to that material is a complete answer to this ground as pleaded. Accordingly, this part of the ground does not disclose a reasonable cause of action and this part of Grounds 4, 5 and 6 should be summarily dismissed.
3. As to the allegation that the Council took into account an irrelevant consideration the Applicant was unable to articulate why, in a legal sense, such a matter was irrelevant to the consideration of flood impacts. It appears that this matter is one with which the Applicant disagrees, but such dissatisfaction speaks of a merit complaint rather than the identification of a cause of action for judicial review of the Council's decision to grant the development consent. Accordingly, this aspect of the grounds does not disclose a reasonable cause of action and this part of Grounds 4, 5 and 6 should be summarily dismissed.
4. As to the reference to the February 2022 flood event in Lismore the Applicant was unable to articulate the basis upon which it could be asserted as a ground to found a cause of action for judicial review of the Council's decision made on 14 September 2021. From the submission made and the chronology of the two events I am satisfied that an allegation that the Council was somehow bound to take into account flooding events that had not yet occurred at the date of the decision does not disclose a reasonable cause of action and this part of Grounds 4, 5 and 6 should be summarily dismissed.

Ground 7

1. This ground relates to the remnant fill. From the evidence adduced it is apparent that the Council considered this matter as there is both discussion in the ACHA considered by the Council (folios 390, 438, and 439 of Exhibit 1) and condition 12 imposed upon the development consent (Exhibit 4) which details the amount of the original fill, the circumstances of its placement and details on the manner in which it will be incorporated into the final landform. The pleading in so far as it suggests a failure to take the fill into account is answered by the evidence.
2. To the extent that it is asserted that the retention of the fill is "illegal", the asserted illegality related to the consequence of the findings made in earlier proceedings which found that the consent upon which the placement of the fill was undertaken was invalid, such an assertion is not open at law. At the time the fill was placed it was authorised by the development consent. A well-established principle is that a development consent is valid unless it is declared invalid by the Court: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 at [83] and as such the work was authorised by the consent in force at the time. The retention of the fill can be authorised by a later consent to "use" the fill and alter or add to it. This is what has occurred.
3. For those reasons outlined at [45]-[65] above, I find that each of the grounds in the Applicant's Further Amended Summons do not disclose a reasonable cause of action and that the Further Amended Summons should be summarily dismissed or in the alternative each and all of the pleadings be struck out.

Applicant's Notice of Motion

1. To enable the efficient conduct of this matter including the determination of the Respondent's Notice of Motion it is appropriate that leave is granted to the Applicant to further amend its Amended Summons in accordance with the Further Amended Summons attached to the Applicant's Notice of Motion. The orders consequential upon the determination of the Respondent's Notice of Motion will relate to the Further Amended Summons for which leave will be granted.

Costs

1. As the outcome of each of the Notices of Motion may affect the exercise of the discretion as to costs, the parties requested an opportunity to consider the judgment and whether the issue of costs can be agreed between the parties or whether a further hearing on costs was required. In accordance with that request, I will reserve the costs of each of the Notices of Motion and make directions to accommodate a hearing of any costs application (if necessary).

Conclusions and orders

1. For the reasons outlined above, I find that the Applicant's Further Amended Summons does not disclose a reasonable cause of action pursuant to UCPR rr 13.4 and 14.28 and, accordingly, that the Respondent is entitled to the relief sought in the Respondent's Notice of Motion. In light of my findings and having regard to the requirements of ss 56 to 58 of the Civil Procedure Act 2005 (NSW) I consider that the appropriate relief is that the proceedings be summarily dismissed there being no remaining issue or claim that persists on the Applicant's Further Amended Summons. I also take into account the fact that the Applicant has had the opportunity to amend its Summons on two prior occasions and has not identified any matter that would speak against the exercise of my discretion to make such order. Accordingly, I propose to make an order in accordance with order 1 sought in the Respondent's Notice of Motion.
2. The Court orders that: 1. Leave is granted to the Applicant to further amend its Amended Summons in accordance with the form of the Further Amended Summons attached to its Notice of Motion filed 30 May 2022; 2. The Applicant's Further Amended Summons referred to in order (1) above is summarily dismissed; 3. The costs of the proceedings; the Applicant's Notice of Motion dated 30 May 2022; and the Second Respondent's Notice of Motion dated 31 March 2022 are reserved; and 4. The exhibits are returned. The parties are to collect the exhibits from my Associate within 14 days of the date of these orders.
3. The Court directs that: 1. Liberty is reserved to the parties to make an application for costs as referred to in order [70(3)] above. Any such application is to be made by contacting my Associate within 21 days of the making of the orders for the purposes of listing the matter for directions and the fixing of a date for hearing relating to costs; and 2. Prior to exercising the liberty referred to in (1) above, any party making any such application should notify all other parties of the application including the First Respondent.

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: 12 July 2022