By notice of motion filed 25 November 2019, Penrith City Council ('Council'), the applicant in Class 4 proceedings against Dincel Construction System Pty Limited ('first respondent') and Gaonor Pty Limited ('second respondent'), seeks leave to rely upon an expert report of Emily McGinty of Douglas Partners dated November 2019 ('McGinty Report').
The motion proceeded to hearing before me today. Mr R White of counsel appeared for Council and Mr H Grace of counsel appeared for the respondents.
In the substantive proceedings (which are set down to commence on 4 December 2019, and are expected to run for seven days), Council seeks declaratory and consequential injunctive relief against the respondents in relation to the use of land known as 919 - 929 Mamre Road, Kemps Creek ('premises'). Council alleges that the first and/or second respondents have carried out development at the premises, including the excavation of soil; the removal of trees and vegetation; the importation and deposition of fill; the construction of earthworks including an earth mound; and certain other construction, without development consent. Declaratory relief is also sought in relation to land known as 931 Mamre Road, Kemps Creek in respect of the deposition of fill and the construction of an earthen platform. Council also alleges that the first respondent used and is continuing to use the premises and land known as 901 - 915 Mamre Road, Kemps Creek, for storage or, a warehouse and/or distribution centre.
Declaratory relief is also sought against the second respondent in respect of a purported breach of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') by failing to comply with an order issued pursuant to s 9.34 of the EPA Act.
As noted above, in addition to declaratory relief, Council seeks consequential injunctive relief, including orders requiring the cessation of work at the various premises and, relevant to the motion before the Court, an order that the respondents remove unlawful works; restore the ground level of the premises; and dispose of the unlawful fill at a waste facility.
In its Points of Claim ('POC') filed on 26 July 2019, Council alleges that in March 2018, Council officers inspected the premises and observed that volumes of fill material had been imported and deposited on the premises and that earthworks were being carried out on the premises. In April 2018, Council served a Notice of Intention to Serve an Order on the second respondent to cease the unauthorised importation of fill, remove the fill and restore the premises. Thereafter, an order was served. It is further pleaded that in November 2018, Council officers attended the premises on a number of occasions and observed that a hardstand area had been constructed thereon.
The Points of Defence filed by the respondents on 15 August 2019 take issue with many of the allegations in Council's POC. Relevantly, the respondents note that the orders sought by Council are "unreasonable, unjust and impractical" in circumstances where certain representations were made by Council officers and others to the respondents.
In support of the order sought in the motion, Council reads the affidavit of Ellie Chapman, solicitor for Council, sworn 25 November 2019. Ms Chapman sets out the background to the matter and deposes that the respondents' agents made representations in November 2018 to Council officers that the fill deposited at the premises was "clean". Ms Chapman notes that the respondents' evidence includes an expert report of Mark Challoner, environmental scientist at Consulting Earth Scientists Pty Ltd. Mr Challoner states that having considered various expert reports provided to him, he considers that those reports do not indicate whether or not the fill on the premises is contaminated. Ms Chapman deposes that the respondents gave Council permission to undertake certain soil and associated testing at the premises on 16 and 17 October 2019, and that the test results and details of the location of the testing were provided to the respondents on 31 October 2019.
The McGinty Report was provided to Council's solicitors on 14 November 2019 and on 22 November 2019 a copy of the report was provided to the respondents.
The McGinty Report, with its annexures, comprises approximately 1,100 pages. The bulk of the report consists of annexures, being expert reports which have been provided by the respondents to Council, including the expert report of Mr Challoner dated 29 August 2019 (filed in these proceedings). The body of the McGinty Report is approximately 41 pages, including the executive summary. Ms McGinty records that she was instructed by Council's solicitors to carry out work that she considered necessary to provide a comprehensive report on the fill at the properties, and whether or not the placement of the fill at 919 Mamre Road and 931 Mamre Road complied with certain requirements under the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act') and the Protection of the Environment Operations (Waste) Regulation 2014 (NSW).
Ms McGinty, having reviewed earlier reports, records that the fill deposited contained construction and demolition materials, and that there were some "shortfalls" in the earlier reports. Ms McGinty notes that it is "unclear whether or not asbestos is present in the material assessed" and "[t]he absence of adequate asbestos testing means the potential for fill potentially containing asbestos to have been placed on the properties above the guidelines cannot be ruled out". She states that while some asbestos testing has been undertaken as part of the investigations she undertook, further testing would be required to satisfy certain requirements.
Opposing the motion, the respondents read the affidavit of Penelope Louise Murray, solicitor for the respondents, affirmed on 28 November 2019. Ms Murray sets out the history of the litigation and various directions for evidence that have been made, and she indicates that when the matter was set down for hearing, it was made clear that Mr Challoner (the respondents' expert) would not be available from 9 December 2019 through to January 2020. In response to a specific request on 10 September 2019 as to whether Mr Challoner was required for cross-examination, Ms Murray notes that the respondents were informed that he was not required for cross-examination.
The expert report of Mr Challoner (considered in the McGinty Report) had been served by the respondents on 30 August 2019 which, among other things, addressed the likely quality of the fill on the premises.
Ms Murray further deposes that when the respondents agreed to Council undertaking soil sampling at the premises in October 2019, it was made clear that the provision of site access to conduct the relevant sampling did not equate to an agreement that Council could rely upon any resultant report. Ms Murray notes that it was only by email of 6 November 2019 that Council indicated that it intended to file and serve the McGinty Report which was provided to the respondents on 22 November 2019.
Ms Murray details what she considers to be the prejudice to the respondents if the McGinty Report is relied upon, including the fact that there has been no claim or pleading in relation to contamination of the fill deposited. Ms Murray deposes that the McGinty Report not only comments on a number of earlier export reports, but raises a number of new issues in relation to the fill, including asbestos contamination, elevated concentrations of various contaminants, and the integrity of earlier soil reports. Ms Murray says that the McGinty Report also alleges breaches of the POEO Act.
Each of Mr White and Mr Grace made detailed oral submissions at the hearing of the motion. In summary, Mr Grace expressed concern in relation to the significant lateness and prejudice that would flow to the respondents in light of Mr Challoner's known limited availability, and the fact that his evidence was apparently accepted, noting that he was not required for cross-examination, and noting that he was unavailable in any event except for the first two days of the hearing. Mr Grace also noted the evidence of Ms Murray that Mr Challoner was not in a position to respond in writing to the McGinty Report until early next year. Mr Grace submitted that those matters alone were sufficient for the report not to be accepted and for leave not to be given.
Mr Grace also noted that the McGinty Report raised new issues of significance as referred to in Ms Murray's affidavit. He submitted that there was no explanation as to why there had been a delay in the provision of the report. Mr Grace points to the Court's discretion under the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), specifically referring to r 31.28 and relying upon various expressions of how courts have considered the "exceptional circumstances" that are required: Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66].
Mr White did not accept that genuine prejudice would flow to the respondents if the McGinty Report were accepted, describing claims to the contrary as "overcooked". He noted that Ms McGinty's evidence went to the heart of the matter and submitted that the evidence that would be before the Court indicated that there had been approximately 40,000 cubic metres of imported fill placed on the premises, which he said represented fill rising to a height of some 6 metres above the surface level of the properties. Mr White further submitted that the problems in relation to the fill were of the respondents' "own making".
Mr White further noted that Mr Challoner's report was itself a "desktop" report and the McGinty Report did not necessarily add significantly to Council's case. He also noted that Council was a public authority with certain obligations and had two primary concerns - first, the sheer scale of the works undertaken; and second, the appropriateness, nature and extent of the material that had been deposited. Mr White indicated that the initial test results were supplied to the respondents in late October, and Council had a concern that, absent the McGinty Report, the Court might labour under some misapprehension as to the nature, extent and appropriateness of the relief sought by Council.
I have carefully considered the parties' submissions and the relevant authorities. It is relevant to note that the approach of the Court is enshrined in r 31.28 of the UCPR, and has been considered on many occasions.
I accept that the evidence that is sought to be relied upon is material to the matters before the Court. I also accept that the respondents are, to some extent, taken by surprise considering the lateness of the service of the McGinty Report. I was initially minded not to allow the evidence, however, I am informed by Mr Grace that it is not suggested that the admission of the report into evidence would necessarily result in an application for adjournment (and I understand that both parties are desirous of not losing the hearing dates). I am also informed by Mr White that Mr Challoner, although unavailable to prepare a written report until early next year, will be available and able to give viva voce evidence in response to the McGinty Report on certain (limited) days.
Although my primary disposition was not to allow the report, I take into account the fact that it can be dealt with in a way that is expedient and possibly just, quick and cheap by Mr Challoner giving viva voce evidence in response to it. Further, as I have indicated earlier, there is dispute between the parties as to whether, if Council enjoys success in the proceedings, the relief sought (which involves the removal of much of the fill) is appropriate in circumstances where it is strongly opposed on the basis that it is "unreasonable, unjust and impractical". Thus, I consider that the nature and extent of any contamination of the fill deposited at the premises is an important matter, specifically in relation to the relief sought by Council, noting that the burden of any such order may be exacerbated if there was contamination.
While I do not intend to be critical of Council, I am not satisfied that Council's conduct in providing the McGinty Report as late as it has should be applauded or rewarded. Despite this, I accept that Council is also seeking to enforce the planning regime, and the maintenance thereof is a matter of public importance.
Accordingly, while I accept that there is genuine prejudice that flows to the respondents if Council is able to rely upon the McGinty Report, approaching the matter in the way the Courts have in the cases to which I have been referred, an appropriate balance between fairness to each of the parties and the interests of justice is met by an order granting leave to Council to rely on the McGinty Report. The respondents should also be allowed to call evidence (oral or otherwise) in response thereto.
[2]
Orders
The orders of the Court are:
1. Penrith City Council is granted leave to rely on the expert report of Emily McGinty of Douglas Partners dated November 2019 at Annexure 'A' to the Notice of Motion filed by Penrith City Council on 25 November 2019.
2. Dincel Construction System Pty Limited and Gaonor Pty Limited are granted leave to rely upon further expert evidence (of Mark Challoner) in reply to the expert report referred to in Order (1) above at the hearing commencing Wednesday 4 December 2019.
[3]
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Decision last updated: 19 December 2019
Parties
Applicant/Plaintiff:
Penrith City Council
Respondent/Defendant:
Dincel Construction System Pty Limited and Gaonor Pty Limited