DEVELOPMENT APPLICATION - proposal for subdivision and concept plan for industrial development
Source
Original judgment source is linked above.
Catchwords
DEVELOPMENT APPLICATION - proposal for subdivision and concept plan for industrial development
Judgment (5 paragraphs)
[1]
Judgment
COMMISSIONER: This matter was listed for hearing before me on Wednesday 11 March 2020 and fixed for 3 days. In the afternoon of the first day, an application for an adjournment was made by the applicant in order to allow it to prepare further evidence.
The application for an adjournment was opposed by the Council and after hearing their arguments, I dismissed the application and the proceedings. At the time, I indicated that I would endeavour to provide my reasons promptly. These are those reasons.
[2]
The hearing
In accordance with the Court's usual practice, the hearing commenced with a site inspection at Warnervale at 9.30am before resuming in the Court in Sydney. Until that point in time, no application for adjournment was foreshadowed by the applicant.
When the hearing resumed at 2pm, Mr Young who with Mr Fozzard, appeared for the applicant, sought the following orders:
1. Grant leave to the Applicant to include in its Class 1 application a full copy of the Statement of Environmental Effects of November 2017;
2. Grant leave to the Applicant to rely upon the Amended Landscape and Buffer zone plan, Vege Buffer Amended, Version C;
3. Direct the joint town planning experts to confer on whether the proposal meets the requirement of the Wyong Local Environmental Plan 2013;
4. Direct the Council to provide the applicant with "without prejudice conditions" forthwith;
5. Direct the Applicant by its expert undertake a further study and assessment of large forest owls, squirrel glider and Wallum froglet - within 6 weeks, and
1. provide the Respondent with findings; emerging from 5 (a) above within 8 weeks; and then
2. Dan Williams and Danielle Allen (ecologists) to confer in relation to the findings from 5(a) above.
1. Direct Chris Smith (applicant's retained town planner) to confer on the traffic issues so far as they relate to their expertise.
2. Adjourn the proceedings until further time.
3. Such further or other orders as this honourable Court deems fit.
In addressing his client's application for an adjournment, Mr Young said that "some matters had arisen this morning and otherwise" which I needed to be informed about. He was referring to a Deed of Agreement between the applicant and the Council relating to the rezoning and subdivision of the applicant's land the subject matter of this Class 1 appeal.
The Deed, which was provided to me in Court, is the subject of specific proceedings in the Supreme Court in which an order for specific performance is sought. The Council is the plaintiff in the Supreme Court proceedings and the development consent that founds this Class 1 appeal is the central focus of those proceedings.
Mr Young, who also appears for the respondent in the Supreme Court proceedings, informed me that those proceedings have been adjourned in order to accommodate an amendment of the Council's claim. They are next before that Court for mention in April. A copy of the Council's Amended Statement of Claim was also provided to me by Mr Young.
[3]
The reason for the application for the adjournment
Mr Young does not seek to adjourn these proceedings pending the determination of the Supreme Court proceedings (Tcpt, 11 March 2020, p 3 (1-20); p 9(50); p 10(1-10)). His client accepts that the present Class 1 appeal is discrete and separate to the Supreme Court proceedings; albeit they are relevant as part of the public interest. The sole purpose of the Class 1 appeal is to obtain development consent for the subdivision of the applicant's land at Warnervale and concept approval for an industrial development with necessary clearing of the vegetation.
The applicant seeks an adjournment of the hearing because of missing traffic and ecological evidence. In Court, Mr Young said:
"YOUNG: One issue that arose this morning, and I want to be quite candid to the Court about this, is that I was personally surprised by, we are a bit like a duck on the lake. Might have looked calm on the surface but frantically paddling beneath the surface, but I was surprised by the appearance on site of Mr Dee [the Council's senior traffic engineer]"
(Tcpt, 11 March 2020, p 13(28-32))
It seems Mr Young had not seen the statement of Mr Brendan Dee, the Council's senior traffic engineer. Mr Dee's statement of evidence was filed with the Court on 4 March 2020 and served on the applicant's solicitor.
Mr Young submitted that his client had refrained from filing the traffic evidence anticipated by the Court's directions of 6 August 2019, as varied by Order on 4 February 2020, because the Council's expert had not invited the applicant's planner Mr Smith to confer for the purposes of a joint report. He was referring to the directions in the Short Minutes of Order made by the Registrar on 6 August 2019 in particular Order 5 which states:
1. (5) Under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the Court makes the following direction regarding expert evidence:
2. …
3. c. Mr Brendan Dee and Mr Chris Smith are to confer in relation to road and traffic issues under UCPR r 31.24 and prepare a joint report.
4. d. the joint reports are to be filed and served by 1 February 2020.
These directions were varied by the Registrar on 4 February 2020 and reflected in the SMO of that date which state:
1. 4. Order 5(d) made by the Court on 6 August 2019, be varied as follows:
1. 5(d) the joint reports are to be filed and served by 28 February 2020.
2. 5(d) if any of the applicant's experts do not participate in joint conferencing, the Respondent's experts are directed to prepare individual reports by 4 March 2020.
Mr Young submitted that the Council did not confer with the applicant's expert and therefore his client did not prepare traffic evidence. On that basis I was asked to reject Mr Dee's statement filed on 4 March and adjourn the case so that Mr Dee and the applicant's planner, Mr Smith could confer.
Next, Mr Young referred me to the parties' ecological joint report filed on 9 March 2020, and his expert, Mr Daniel Williams' admission at paragraph 1.2.6 of the report that he had omitted to carry out a complete assessment of identified threatened species on the site. The Court transcript reads as follows:
"YOUNG: The joint expert report, and it says there that, it says in the GHD ecologist section of that, it says, "Assessments of significance were not prepared for two species, Sooty owl and Powerful owl, these species were heard calling from locations outside of the proposed area", et cetera and there is, I think, reference elsewhere to the other matters. There is that he says further down, "GHD acknowledged potential presence of this species"
COMMISSIONER: Yes, with no assessment in effect.
YOUNG: "And it appears that this was purely an oversight from GHD, and we will complete an AOS for large forest owls", et cetera. That acknowledgment just creates a massive hole for us and in view of the comment which I absolutely appreciate as to how you see your role in, if I can say it with respect, I entirely understand and appreciate you expressing that as to how you do perceive your role in relation to this matter. Those are matters which would be fatal to our application, once we have acknowledged in the report that there are matters, whatever the ultimate issue in relation to those would be, the ultimate determination, the fact that they are not currently addressed and a view is expressed about them on the other side, is just fatal.
COMMISSIONER: Insurmountable, yes, so with that in mind, and that just being one issue, well two issues, there is the traffic …
… but that coupled with the more significant jurisdictional issue raised by the lack of assessment under 5A for the EEC aspect for the sorry, I have forgotten which they are, the squirrel, the frog and the owl, I am precluded really, under the Act, from giving a consent without an assessment of those matters because I can't be satisfied, as you have indicated and in that circumstance, it is one that can't be overcome by a short adjournment because it would require, perhaps seasonal surveys, I don't know when they do these surveys, but before I invite you to perhaps, as you might imagine you can, which I am going to suggest you can't ask for an adjournment to facilitate the relevant investigations, I have to make plain the fact that in this jurisdiction, it would be expected an expert, and your client no doubt will have their own view of how to tackle this conundrum, would have, having identified this omission, communicated it to you prior to today. I know, I am not sure when you became involved and I am not critical of you, but the report was filed in March, what date?
NURPURI: The report was filed last week on 9 March, but the contention for which the issue arises
COMMISSIONER: I know, it has been alive since the beginning, hasn't it?
NURPURI: Since August last year, so it certainly wasn't a recent."
(Tcpt, 11 March 2020, p 16(1-49))
Mr Young continued with his submissions in support of his client's application for adjournment, including raising issue with the objectivity of the Council's planner and other matters such as suggesting that I should proceed to deal with the case without evidence and determine whether "…the subdivision and the vegetation clearing were inextricably linked" (Tcpt, 11 March 2020, p 28 Ll40 -50). These Submissions, quite frankly did little to further his client's' application for an adjournment.
The adjournment was opposed by the Council. Ms Nurpuri, who appeared for the Council, explained that she had not been involved in the Supreme Court litigation and therefore was unable to reply to Mr Young's summary of that litigation. Instead, quite properly she invited me to focus on the Class 1 appeal at hand, and to place little weight on the Supreme Court proceedings (Tcpt, 11 March 2020, p 10(30)).
Then, referring to the DA appeal plans and documentation, Ms Nurpuri said that her clients' position in the case was essentially twofold; a complaint about insufficient assessment of the ecological values of the site; and, insufficient detail about the development of an industrial lot (Tcpt, 11 March 2020, p 10(20-50); p 11(5-41)). In short, insufficient information to allow me to make a proper assessment of the application under s 4.15 of the EPA Act.
To assist me understand the extent of the deficiencies of the development application, Ms Nurpuri asked me to consider the listed contentions particularised in Part B of the Council's original Statement of Facts and Contentions in Reply (SOFCR) filed and served on the applicant on 17 January 2019. Reading from the SOFCR, Ms Nurpuri emphasised that the applicant had been on notice of the need for the missing ecological and traffic evidence since the commencement of the appeal. In that circumstance the Council opposed the adjournment of the hearing to obtain that same evidence 12 month on. In particular, she identified by reference to the SOFCR that the Council had particularised the need for fauna surveys and investigations, in accordance with Council's Flora and Fauna Survey Guidelines (2016) with respect to sooty owl and the powerful owl and the Squirrel Glider, Wallum Froglet. She also identified contention 4 of the SOFCR which records: "The concept development was accompanied by insufficient information to address the traffic and access impacts and does not provide details of satisfactory vehicle access to the site" (emphasis added).
These same contentions were repeated in essentially the same terms in the subsequent Amended Statement of Facts and Contentions (ASOFC) filed by the Council on 16 August 2019 and 4 February 2020 and served on the applicant. Ms Nurpuri pointed out that the Registrar had amended the directions for the hearing to allow the applicant more time to prepare its evidence, in particular ecological evidence that is the subject of the adjournment.
In response to the suggestion that the applicant was taken by surprise at the filing of the statement of evidence of Mr Dee and his involvement at the hearing, Ms Nurpuri said that the Council's solicitor had emailed the applicant's solicitor to invite his expert to confer on traffic matters and received a response stating that Mr Smith, the applicant's planner, did not want to confer. Moreover, the Registrar's directions having anticipated that outcome had included a further direction allowing an individual statement of evidence by traffic experts. The Council filed and served its traffic report. I invited Mr Young to obtain instructions about this. Despite opportunity to obtain those instructions no more was said by Mr Young about this matter of the emails. In that circumstance I accepted Ms Nurpuri account of what happened.
At the request of Mr Young, I adjourned the matter for a short period to allow Mr Young to confer with his instructing solicitor. I requested that he consider whether the preferred course might be to withdraw the appeal by filing a notice of discontinue rather than me rejecting his application for adjournment and dismissing the appeal. I also pointed out that if the proceedings were discontinued with the leave of the Court, then the development consent at issue in the appeal would remain operative, and given his client's main concern was the condition that precluded clearing of vegetation of the industrial land, his client would have the option to lodge a modification application to remove or vary the condition.
It was plain to me that in the absence of the ecological survey of the threatened species known to be on the site that the appeal could not lawfully proceed. Mr Young had correctly identified at the outset that GHD had acknowledged the presence of threatened species and in Mr Young words "...assessments of significance were not prepared for two species" - and also now two further threatened species - the Sooty Owl and the Powerful Owl. Mr Young sought to argue that these particular large owls should have been particularised by name in the contentions and that the Council was now raising new issues. However, the Council said the investigation of any large owl was required under the Council's Fauna Guidelines which had been referred to in the SOFCR. In that circumstance, the Council submitted that the need to investigate large owls had been identified by the Council. In any event, assessments of these threatened species had been missed and needed to be assessed and the applicant's ecologist had conceded this in paragraph 1.2.6 of the joint report. Moreover, the Council submitted that any complaint about the missing assessment of the Sooty and Powerful Owl did not overcome the fact that the other specified listed species had also not been properly assessed.
[4]
Consideration
The site it is outlined in yellow in the photograph below.
The street address is 130-134 Sparks Road, Warnervale. The land is known as Lots 1 and 2 in Deposited Plan 1225652.
As was apparent at the site view the land is essentially undeveloped, unserviced land which is heavily vegetated containing Endangered Ecological Communities both fauna and flora (EECs).
To complicate matters, the land also adjoins the Porters Creek wetland and part of the site is identified as flood affected and bush fire prone. There are two waterways that extend through the site; - Buttonderry Creek extending through the north western section of the site and an unnamed tributary extending midway of the site near the proposed shared boundary. Sparks Road is a classified road and both lots are affected by road widening along their frontage. There is no existing access for the site.
The application is for integrated development. And, according to the agreed facts, the DA was referred to NSW Roads and Maritime Services and Department of Primary Industries - Water in 14 May 2018. Both departments requested additional information but none was forthcoming (ASOFC dated 16 August 2010 p 4).
The Council opposed the orders sought. It argued that the applicant has been aware of the contentions since at least August 2019, as they had been documented in the original SOFCR.
The Council submits in the absence of the assessment of significance of the Sooty owl, the Powerful owl and the froglet and the squirrel glider, all threatened species, the Court is unable to grant consent under the Environmental Planning and Assessment Act 1979 (EPA Act). This is a threshold issue going to jurisdiction because I do not know if I need a species impact statement. Mr Young made much of the fact that the Council's SOFC in reply did not specify the need for survey and assessment of the Powerful Owl just the other two threatened species. But as Ms Nurpuri pointed out - contention 4 of the SOFC in reply specifically referred to investigations in accordance with the Council's Fauna Guidelines and they listed "any owl" on the site. The fact that the particular species of owl was not nominated in the SOFC does not negate the need for a proper assessment invited by the Guidelines. And, again as Ms Nurpuri pointed out on one view this is academic when the other two specified threatened species were also ignored (Tcpt, 11 March 2020, p 24(3-14)).
The applicant's ecologist acknowledges that assessments of significance (prepared in accordance with the repealed s 5A of the EPA Act and the Department of Environment and Climate Change NSW (2007) Threatened Species Assessment Guidelines: and/or the Council's Flora and Fauna Survey Guidelines (2016)) have not been provided for the locally occurring threatened species and that they need to be carried out. Furthermore, the Council submits that the detail in the concept development application is not sufficient to allow for a satisfactory assessment of the proposal in its entirety, and grant a consent which includes the proposed clearing of vegetation. Ultimately, the issue is whether I should allow the applicant more time to complete these ecological surveys, to prepare traffic evidence and to submit an amended plan at this late stage, when the hearing has commenced. The issues raised to support the applicant's application for an adjournment were known prior to the commencement of the hearing.
While the applicant says it can carry out the relevant surveys within 6 weeks, this will necessitate a response from the Council and the likelihood is this part heard matter will be delayed for months before allocation of a date before me given the current hearing allocations.
It is my considered opinion that it is all too little too late. The proceedings were commenced in this Court on 5 November 2018. The Court file records several variations to the timetable for evidence in this case. For example, the Court had on 6 August 2019, directed that any flora and fauna surveys be completed by 30 November 2019. Further time was provided in an order made in February when it was directed that the applicant file and serve the flora and fauna surveys it relies upon by 7 February. As it happened, the ecological evidence was prepared on 5 March following a teleconference and filed on 9 March 2020. Yet, it was only half way through the first day of the hearing that the applicant asked for this adjournment - having been on notice of the "hole" in the ecological evidence since 5 March.
The applicant's delay in making the application for an adjournment founds a refusal of the adjournment of this 3 day hearing. Together with the jurisdictional impediment identified by the ecologist in the joint report, there is no utility in proceeding with this hearing today. The absence of the requisite ecological survey is fatal to the consent of application.
The obligation stated in s 56(1) of the Civil Procedure Act 2005 (CPA) is for the Court to facilitate the proper (just), expeditious (quick) and least expensive (cheap) resolution of the proceedings. In order to do this, the Court must act in accordance with the dictates of justice: s 57 of the CPA. When I consider the case management of this matter since the appeal was lodged in 2018, as explained to the Court by Ms Nurpuri and as recorded within the various SOFC, I am satisfied that the issues in this case have been clearly defined for several months and the applicant has been given more than sufficient time to prepare its case. There needs to be a timely resolution of this appeal and as the High Court of Australia made plain in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon) in the interests of justice and having regard to the objects of case management, late amendment of an application as proposed in this instance (and requiring further notification to the Department of Primary Industries - Water) it would be wrong to adjourn this matter during the hearing.
In coming to that decision I have considered the matters referred to in Aon about the effect of the loss of Court time on not only the parties in the present proceedings but on other litigants and the waste of judicial resources potentially involved. I could have allowed for the traffic issue to be resolved by inviting the Council's expert to confer with Mr Smith overnight and prepare a short joint report during the course of the hearing which could have been tested in Court. However, the extensive time required to carry out the critical surveys to enliven my jurisdiction to deal with this matter is not justified.
Mr Young said that the issue of the missing ecological evidence from the ecologist became apparent when the joint report was received on 9 March 2020. However, he did not raise the jurisdictional matter until after the view in Warnervale. Moreover, I had specifically invited the parties at the outset of the view to inform me if the appeal would be completed within the allocated 3 days. Mr Young said at that time he could not give that undertaking and waited - one presumes on instructions to raise the matter of the missing evidence - which he described as a "massive hole" in his clients' case after 2pm when he sought an adjournment. Importantly, it could not be assumed that the "massive hole" could be filled by the surveys yet to be undertaken. If those surveys were to establish a relevant impact on the threatened species the application would be incompetent because a species impact statement would be required.
In my view, the applicant has not prosecuted the proceedings with due despatch: UCPR r 12.7. I have an obligation to ensure that the dispute is resolved justly, quickly and cheaply. An adjournment does not achieve that overriding objective. Without the ecological assessment, the appeal cannot proceed.
Accordingly, the Court orders:
1. The application for an adjournment is refused.
2. The proceedings are dismissed.
[5]
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Decision last updated: 20 March 2020