Regional Architects Pty Ltd v Coffs Harbour City Council

Regional Architects Pty Ltd v Coffs Harbour City Council - [2021] NSWLEC 29 - NSWLEC 2021 case summary — Zoe

[4]

Agreed chronology

The parties agreed on the following chronology: Date Event 12 April 2018 Applicant lodges development application 27 June 2018 Letter from RFS to Council requiring further information 23 August 2018 Letter from Council to Applicant outlining further information required to assess development application 29 August 2018 Meeting between Council and Applicant requesting information prior to proceedings 21 September 2018 Applicant files Class 1 application 19 October 2018 Council files Statement of Facts and Contentions 19 November 2018 Applicant files Statement of Facts and Contentions in Reply. 27 February 2019 Letter from Council's solicitor, HWL Ebsworth (HWLE) to Applicant's solicitor Pacific Legal (Pacific Legal) regarding insufficient information 22 March 2019 Letter Pacific Legal to HWLE regarding insufficient information 9 April 2019 Email from HWLE to Pacific Legal chasing up insufficient information 23 April 2019 Applicant provided amended concept plan 30 April 2019 Conciliation Conference commencing on site before returning to Coffs Harbour City Council Chambers. Conciliation conference adjourned to 22 May 2019 22 May 2019 First adjourned section 34 conference. Conciliation conference adjourned to 29 July 2019. 7 June 2019 Letter from Pacific Legal to HWLE requesting information from Council in relation to requirements for provision of Koala SIS 26 June 2019 Email from Pacific Legal to HWLE attaching documents including a document titled 'Koala Species Impact Statement' (not actually a species impact statement) and a second document also titled 'Koala Species Impact Statement' (actually an assessment of significance for Koala, Brush-tailed Phascogale, Squirrel glider and microbats 23 July 2019 Email from Pacific Legal to HWLE regarding correspondence with Office of Environment and Heritage (OEH) regarding Koala SIS 29 July 2019 Second adjourned section 34 conference. Conciliation conference terminated 2 August 2019 Letter from HWLE to Pacific Legal inviting the applicant to discontinue with no order as to costs 3 August 2019 Email HWLE to Pacific legal regarding application of BC Act 5 August 2019 Directions hearing: Matter adjourned and applicant directed to file and serve a notice of motion to amend the application by 15 August 2019 19 August 2019 Directions hearing: Matter listed for a 7 day hearing from 17-25 February 2020. Applicant directed to file and serve a notice of motion to amend the application by 30 September 2019 23 August 2019 Letter from HWLE to Pacific Legal confirming that as the experts agree that the application should include an SIS, and the time for providing an SIS has passed, the application must be assessed under the Biodiversity Conservation Act 2016 30 September 2019 Online Court lodged granting extension to applicant to file and serve notice of motion seeking leave to amend the application to 14 October 2019 16 October 2019 Applicant files notice of motion seeking leave to amend application 23 October 2019 Applicant granted leave to amend application. 4 November 2019 Letter from HWLE to Pacific Legal proposing joint experts field work exercise regarding EEC 7 November 2019 Letter from Pacific Legal to HWLE rejecting joint field work exercise regarding EEC 25 November 2019 Council files Amended Statement of Facts and Contentions. 2 December 2019 Applicant files Amended Statement of Facts and Contentions in Reply 23 December 2019 Email from Pacific Legal to HWLE providing Phil Cameron (applicant's ecologist) expert report 13 January 2020 Email from HWLE to Pacific Legal requesting mapping of plant community types as referred to in Phillip Cameron's Report 16 January 2020 Email from HWLE to Pacific Legal requesting mapping of plant community types as referred to in Phillip Cameron's Report and Bat Call Analysis, Impact Ecology June 2019 28 January 2020 Joint Expert Report regarding engineering issues (Green and Rhodes) filed 29 January 2020 Report of Council's hydrologist/coastal engineer, Dr David Wainwright, provided to applicant 29 January 2020 Joint Expert Report regarding Koalas (Cameron and Phillips) filed (first report) 29 January 2020 Email from HWLE to Pacific Legal requesting that expert report of Peake and Cameron adequately address contentions 31 January 2021 Joint expert report on general ecology issues (Cameron and Peake) filed 3 February 2021 Joint expert report on soil issues (Cupper and Hazleton) filed 3 February 2020 Joint report on town planning (Shiels and Sneyd) filed 5 February 2020 Joint report regarding presence of EEC (Contention 1(b))(Peake, Phillips, Hazelton, Cupper, Cameron) filed 10 February 2020 Joint report regarding presence of EEC (Contention 1(b))(Peake, Phillips, Hazelton, Cupper, Cameron) filed refiled with missing annexure 12 February 2020 Email from HWLE to Pacific Legal a detailed site survey and amended, dimensioned subdivision plan responsive to the BFSA 12 February 2020 Email from Pacific Legal to HWLE providing 7 part test on EEC 12 February 2020 Email from Pacific Legal to HWLE providing several documents including Acid Sulphate Assessment 12 February 2020 Email from HWLE to Pacific Legal again requesting mapping of plant community types and Bat Call Analysis 13 February 2020 Email from Pacific Legal to HWLE providing mapping of plant community types and Bat Call Analysis 13 February 2020 Email from Pacific Legal to HWLE providing amended subdivision plan 14 February 2020 Email from Pacific Legal to HWLE providing Detailed Survey Plans 14 February 2020 Supplementary joint expert report regarding Koalas (Cameron and Phillips) filed 16 February 2020 Email from Pacific Legal to HWLE providing Vegetation Management Plan 16 February 2020 Email from Pacific Legal to HWLE providing amended plans for Sawtell Road roundabout 17 February 2020 Hearing commences 17 February 2020 Email from Pacific Legal to HWLE providing Updated Acid Sulfate [sic] Management Plan 17 February 2020 Email from Pacific Legal to HWLE providing MUSIC modelling 19 February 2020 Supplementary joint expert report (Cupper and Hazleton) regarding insufficient information relating to acid sulphate soils filed 19 February 2020 Email from Pacific Legal to HWLE providing amended Stormwater Plans 19 February 2020 Email from Pacific Legal to HWLE providing amended Stormwater Management Plan 20 February 2020 Leave granted in Court by Commissioner Adam to applicant to amend application. 20 February 2020 Council's planner overlays amended subdivision plan with amended stormwater plan to demonstrate inconsistency which is tendered in Class 1 proceedings. 21 February 2020 Email from Pacific Legal to HWLE providing Amended 7 part test on EEC completed by Phil Cameron 21 February 2020 Leave granted to discontinue proceedings. 28 September 2020 Council files a notice of motion seeking an award for costs

[7]

Hewitt affidavit 13 October 2020

The Council also read the affidavit of Ms Hewitt affirmed 13 October 2020. Exhibited to Ms Hewitt's affidavit were four folders of documents marked JEH-1 (Ex A). Ms Hewitt attested that she sent a letter on 2 August 2019 inviting the Applicant to discontinue these proceedings. The letter stated that the Council would not seek an order for costs if the matter was discontinued within seven days (Ex A). The Council's costs at 2 August 2019 were approximately $94,000 plus GST. At the time of affirming her affidavit dated 13 October 2020, the Council's costs were in excess of approximately $368,515.75. Ms Hewitt attested that the proceedings had required the substantial attention of and consideration by the Council's staff.
The Applicant lodged the DA on 12 April 2018. The Council sent two letters dated 23 August 2018 to the Applicant identifying deficiencies with the DA (see below in [20]-[23]). Ms Hewitt was instructed that a letter from the NSW Rural Fire Service (RFS) to the Council dated 27 June 2018 requesting further information was sent to the Applicant with the letters dated 23 August 2018.
The Applicant commenced a Class 1 appeal on 21 September 2018. The Council filed and served a SOFAC dated 19 October 2018 (see below in [24]-[25]). On 27 February 2019, Ms Hewitt sent a letter to the Applicant's solicitor requesting information that was called for in the SOFAC. This included further information on the adverse impact on the EEC, koalas, the impact on hollow dependent fauna, acid sulfate soils, bushfire safety, stormwater and traffic. On 9 April 2019, Ms Hewitt sent a letter identifying that given the lack of information provided, she anticipated instructions to vacate the upcoming s 34 conference in April 2019.
Ms Hewitt sent an email to the Applicant's solicitor on 3 August 2019 identifying that the DA would need to be assessed under the BC Act. Ms Hewitt understood that at one stage it was agreed by the Applicant that a species impact statement (SIS) was at least required for koalas as a consequence of correspondence from the Applicant between 22 March 2019 and 23 July 2019. On 23 August 2019, Ms Hewitt sent a letter to the Applicant's solicitor confirming the Council's position that assessment should proceed under the BC Act.
The Applicant was granted leave to amend the DA on 23 October 2019. The Council filed and served an amended statement of facts and contentions (ASOFAC) dated 25 November 2019 (see below in [30]-[32]). Ms Hewitt considered that the issues raised in the ASOFAC dated 25 November 2019 had substantial overlap with issues raised in the 23 August 2018 letters and in the SOFAC dated 19 October 2018.
Ms Hewitt attested that the Council retained the following five experts for the proceedings: Mr Travis Peake (ecology), Dr Steve Phillips (koalas), Dr Pamela Hazelton (pedology), Dr David Wainwright (flooding) and Ms Jillian Sneyd (town planning). The Council's experts prepared four individual expert reports and participated in six joint reports (included below in [33]-[36]). Ms Hewitt attested that evidence from the Council's experts was required exclusively to deal with the issue of whether an EEC was present on the Site. Ms Hewitt attested that the joint reports generally confirmed the Council's consistent position that certain further information was required to assess the DA.
In submissions the Council referred to a number of documents annexed to Ms Hewitt's affidavit dated 13 October 2020 contained in Ex A.

[8]

Documents at the development application stage

The details of the proposal are set out above in [8]. A copy of the DA lodged 12 April 2018 was included with the Class 1 application in Ex A. The documents attached to the DA were: 1. acid sulfate soil assessment dated October 2016; 2. one page letter purporting to be an assessment from the Coffs Harbour and District Local Aboriginal Land Council dated 9 November 2016 stating that no objects of Aboriginal origin were located on the property; 3. Bushfiresafe (Aust) Pty Ltd bushfire risk management plan dated October 2017; 4. Bushfiresafe (Aust) Pty Ltd flora and fauna assessment dated February 2018 which identified soil material on the Site that was inconsistent with key soil type indicators for the EEC. In accordance with the CHCC DCP guidelines, the precautionary approach to consider all relevant communities that meet the floristic criteria of EEC's is required. Specialist soil reports, prepared by Douglas CMG (2016), identify inconsistencies of key soil type indicators for this EEC. Therefore, under definition this discrepancy meets policy requirements sufficient to challenge the status of these communities to constitute as EEC, and as elected by the proponent. Recognition toward ancillary information (REDCC pers. Comm.) including run-on/drainage and point source of local hydrology, will also be sought. Therefore, in respect of this information, this EEC is not considered further in this report. Pending final determination impacts to relevant plant communities are not assessed. The assessment did not consider the impact of the development on the EEC further. The assessment identified that activities associated with the development could potentially impact koalas and hollow dependent species; 1. supplementary ecology report prepared by Mr Phil Cameron (Applicant's ecologist) dated 20 February 2018; 2. proposed plant species list dated April 2018; 3. draft voluntary planning agreement (VPA) between the Council and the Applicant - "Dedication of Land" (Dedication of Land VPA) - explanatory note dated April 2018; 4. draft VPA between the Council and the Applicant - "Platypus Junction" (Platypus Junction VPA) - explanatory note dated April 2018; and 5. statement of environmental effects (SEE) dated April 2018.

[9]

23 August 2018 letters from the Council to the Applicant

The Council sent two letters to the Applicant on 23 August 2018 in response to the DA (Ex A). The first letter addressed the two draft VPAs - the Dedication of Land VPA and Platypus Junction VPA. The Council requested further information with respect to the Dedication of Land VPA and stated that the offset proposed in the Platypus Junction VPA was inconsistent with the Council's "Dedication of Land Policy". The Council was not willing at this stage to enter into these VPAs.
The second letter dated 23 August 2018 noted the absence of a SIS, that a seven-part test of significance under former s 5A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) was required for the EEC present on the Site and that insufficient information had been provided in relation to the development's potential traffic impacts and on stormwater matters inter alia.
Specifically, the Council identified issues with the DA under the following headings: 1. assessment of significant effects on threatened species; Information submitted with the DA did not demonstrate that the development would not have a significant effect on the wallum froglet species and hollow dependent fauna, and that a SIS was not required. The submitted information maintained there was no EEC despite showing that most of the Site was located on alluvial soils, which was a key indicator for the presence of the EEC. The Council was of the view that the EEC was present and that a seven-part test of significance was required for the EEC. 1. compliance with the Coffs Harbour Local Environmental Plan 2013 and the Coffs Harbour City Koala Plan of Management 1999; and The proposed on-site retention of a 50 m wildlife corridor and off-site rehabilitation of land and compensatory plantings, establishment of a wildlife hospital, payment into the Biodiversity Conservation Trust, purchase and retirement of credits under the BC Act and re-vegetation and enhancement of degraded lands, did not ameliorate the removal of 6.99 ha of primary koala habitat vegetation. 1. compliance with the Coffs Harbour Development Control Plan 2015 (DCP). There had been no attempt to quantify the required offsets as per the DCP methodology. Using figures contained in the Bushfiresafe (Aust) Pty Ltd flora and fauna assessment dated February 2018, the Council calculated that the DA would require offsets of 98.5 ha, the replanting of 600 trees plus hollow replacements. The mitigation measures described and discussed in the DA did not satisfy the requirements in the DCP.
The letter also stated: It should be noted that as part of the assessment process the following assessment matters were also identified: • the application does not provide sufficient information in relation to the potential traffic impacts of the development; • the application does not provide sufficient information in relation to acid sulfate soils; • the application does not provide sufficient information in relation to the potential impacts of the development on any Aboriginal cultural heritage values pertaining to the land; • the application does not provide sufficient information in relation to bushfire to enable the NSW Rural Fire Service to undertake a proper assessment of the application; • the application does not provide sufficient information in relation to the dedication of land, as required by Council's Dedication of Land Policy; • the application does not provide sufficient conceptual information in relation to the following engineering matters: - sewer and water; - stormwater, including Water Sensitive Urban Design (WSUD); - the nature and amount of cut and fill required; - the proposed internal roads do not comply with Council's design specifications. No conceptual design details have been provided for the proposed roundabout.

[10]

The Council's Statement of Facts and Contentions dated 19 October 2018

The Class 1 appeal was commenced on 21 September 2018. The details of the proposal lodged on 12 April 2018 are set out above in [8]. The Council's SOFAC dated 19 October 2018 raised the following 12 contentions: 1. the proposal was likely to significantly affect the EEC. No seven-part test of significance had been undertaken. The assessment of whether or not the EEC is present on the Site was inadequate. The proposal would result in clearing of an unknown area of the EEC. No acceptable offset strategy was proposed; 2. destruction of approximately 6.99 ha of koala habitat and likely significant impact on this species. The proposed 50 m wildlife corridor was not satisfactory compared with the existing corridor that was between 220 m and 340 m wide; 3. unacceptable adverse impact on hollow dependent fauna resulting from the removal of 56 hollows from the Site; 4. unacceptable impact on terrestrial biodiversity; 5. inadequate information submitted to enable a proper assessment of the soils present on the Site to be undertaken and to confirm appropriate management of acid sulfate soils; 6. a bushfire safety authority had not been obtained from the RFS under s 110B of the Rural Fires Act 1997 (NSW) and insufficient information has been provided to allow a bushfire safety authority to be granted; 7. the proposal compromised the continued protection and long term maintenance of the part of the Site which was zoned "E2 Environmental Conservation"; 8. the DA relied upon offset arrangements to be secured under a VPA which could not be approved as the proposed VPA lacked information and did not satisfy statutory requirements under the EPA Act; 9. the proposal would have a significant impact on the existing contours and stormwater paths on the Site but provided no documentary evidence as to how stormwater would be managed or modelling to demonstrate that the proposed approach would be satisfactory; 10. no traffic study was submitted; 11. not in the public interest to approve; and 12. insufficient information was provided with respect to key information required by the Council to conclude the DA ought to be approved.
The insufficient information contention included the following particulars: (a) It is not clear what the proposal actually entails. (b) The development application must clearly identify the clearing which will be required for proposed bicycle ways, swale drains, stormwater drains, sewer lines and bushfire Asset Protection Zones. It is not clear how much vegetation will actually be retained. (c) The development application does not provide sufficient information in relation to the traffic impacts of the development. (d) The development application does not provide sufficient information in relation to acid sulfate soils. (e) The development application does not provide sufficient information in relation to potential impacts of the development on any Aboriginal cultural heritage values. (f) The development application does not provide sufficient information in relation to dedication of land as required by Council's Dedication of Land Policy. (g) The development application does not provide sufficient information in relation to engineering matters including: (i) sewerage systems and potable water; (ii) stormwater; and (iii) the extent of cut and fill provided, or how this will be managed; (h) The development application does not include a full fauna survey in accordance with the Office of Environment and Heritage's guidelines. (i) The development application does not include an assessment of the impact of the proposal on the EEC pursuant to section 5A of the EPA Act. (j) The development application does not include a proper flood assessment in accordance with the guidelines in the NSW Government's Floodplain Development Manual. (k) Impact on Wallum Froglet habitat - The proposal filed before the Court does not include the further information provided to Council as part of the development application.

[12]

The Council's Amended Statement of Facts and Contentions dated 25 November 2019

The Applicant was granted leave to amend the DA on 23 October 2019. The Council's ASOFAC dated 25 November 2019 stated: … 3. The Amended Proposal involves the subdivision of land including: (a) 59 residential lots, including: (i) 59 lots of variable size (approximately 450 900m2) which appear to be proposed to contain some form of residential development; and (ii) Lot 8 (2321m2) which appears to be proposed to accommodate development for the purpose of a childcare centre; (b) A public reserve for the purpose of stormwater management; (c) A public reserve for the purpose of a [80 m] wildlife corridor; and (d) Associated roads, landscaping, paths and stormwater. 4. The Amended Proposal requires clearing of at least 6.15 ha of vegetation (according to the application documentation). 5. The Amended Proposal includes an offer to enter a voluntary planning agreement to establish a biodiversity offset, as well as proposing various other forms of biodiversity offset including compensatory plantings, a wildlife hospital, and revegetation and enhancement of degraded lands under the Biodiversity Conservation Act 2016. 6. The Proposal is integrated development and a bushfire safety authority under section 110B of the Rural Fires Act 1997 is required before carrying out this development. No bushfire safety authority has been obtained to date.
The ASOFAC dated 25 November 2019 raised the following 14 contentions: 1. the amended proposal was likely to significantly affect an EEC. No test under s 7.3 of the BC Act had been undertaken and a "Biodiversity Assessment Report" under the BC Act had not been provided. Inadequate assessment of whether or not the EEC was present on the Site. The amended proposal would still result in clearing of an unknown area of the EEC. No acceptable offset strategy had been proposed. 2. destruction of approximately 6.15 ha of primary koala habitat. The amended proposal increased the proposed corridor from 50 m to 80 m but this was not satisfactory; 3. unacceptable adverse impact on hollow dependent fauna resulting from the removal of 420 hollows from the Site; 4. impact on other threatened species including koalas, brush-tailed phascogale, squirrel glider and microbats not properly assessed; 5. unacceptable impact on terrestrial biodiversity; 6. inadequate information submitted to enable a proper assessment of the soils present on the Site to be undertaken and to confirm appropriate management of acid sulfate soils; 7. a bushfire safety authority from the RFS had not be obtained under s 110B of the Rural Fires Act 1997 (NSW) and insufficient information submitted to allow a bushfire safety authority to be granted; 8. the amended proposal compromised the continued protection and long term maintenance of the part of the Site which was zoned E2 Environmental Conservation; 9. the amended proposal relied on offsets to be secured under a VPA which could not be approved as the proposed VPA lacked information and did not satisfy statutory requirements under the EPA Act; 10. no documentary evidence as to how stormwater would be managed or modelling to demonstrate the approach taken would be satisfactory; 11. traffic study submitted with the amended DA did not consider the design and subsequent impact on vegetation, infrastructure and surrounding properties; 12. insufficient SEE and supporting documents to enable assessment of the proposed development; 13. not in the public interest to approve; and 14. insufficient information provided with respect to key information required by the Council to conclude that the development ought to be approved.
The insufficient information contention included the following particulars: (a) It is not clear what the proposal actually entails. (b) The development application must clearly identify the clearing which will be required for proposed bicycle ways, swale drains, stormwater drains, sewer lines and bushfire Asset Protection Zones. It is not clear how much vegetation will actually be retained. (c) The development application does not provide sufficient information in relation to the traffic impacts of the development and upgrades to infrastructure to allow for the development. (d) The development application does not provide sufficient information in relation to acid sulphate soils. (e) The development application does not provide sufficient information in relation to dedication of land as required by Council's Dedication of Land Policy. (f) The development application does not provide sufficient information in relation to engineering matters including: (i) sewerage systems and potable water; (ii) stormwater; and (iii) the extent of cut and fill provided, or how this will be managed; (g) The development application does not include a proper flood assessment in accordance with the guidelines in the NSW Government's Floodplain Development Manual. (h) The application is not supported by a Biodiversity Assessment Report (BAR) as required under the BC Act.

[13]

Documents filed after the Amended Statement of Facts and Contentions dated 25 November 2019

Copies of the following documents provided by both parties after the Council's ASOFAC dated 25 November 2019 were included in Ex A. 1. koala report prepared by Dr Phillips (Council's koala expert) filed 20 December 2019; 2. soil report prepared by Dr Cupper (Applicant's geomorphologist) based on his inspection of the Site on 13 May 2019 dated 20 December 2019; 3. updated ecology report prepared by Mr Cameron (Applicant's ecologist) and provided to the Council on 23 December 2019, which concluded that the amended proposal providing an 80 m wide wildlife corridor would not require a SIS for the koala, squirrel glider or brush-tailed phascogale because no significant impact would be caused; 4. individual expert report on flooding by Dr Wainwright (Council's coastal engineer) dated 28 January 2020 which concluded that parts of the Site were capable of being inundated by a 1:100 flood. The Council's published flood mapping had not shown these areas as being inundated. Dr Wainwright demonstrated that the estimated extent of inundation for a 1:100 flood very roughly corresponded to maps of the area of EEC. Dr Wainwright understood that the EEC definition indicated that the EEC need only be "associated" with inundated areas of the floodplain. Dr Wainwright presumed that they may also be adjacent to, close by or somehow connected to areas prone to inundation; 5. joint report of Mrs Marion Rhodes (Council's engineer) and Mr Richard Green (Applicant's engineer) filed 28 January 2020 which addressed engineering issues raised in the ASOFAC dated 25 November 2019. The experts agreed that the engineering plans and documents submitted for the DA were generally satisfactory, except for specific matters raised with respect to the stormwater management plan (SWMP) dated May 2019, the proposed roundabout on Sawtell Road, the public interest and insufficient information. Specifically, the experts agreed that the "MUSIC" model and SWMP dated May 2019 were required to be updated to reflect the September 2019 engineering drawings, including the preparation of the concept design and layout of the proposed water sensitive urban design (WSUD) infrastructure. Mrs Rhodes stated that a roundabout on Sawtell Road with an inner radius larger than 8 m (as proposed by the Applicant) would be required. Mr Green stated that an assessment of the proposed roundabout was outside his expertise however the experts agreed that the potential removal of trees for the roundabout should be referred to others for consideration regarding whether further assessment was required. The experts agreed that engineering matters associated with the public interest were outside their expertise. The experts identified a number of engineering works which would result in potential clearing of vegetation which should be referred to others for consideration. 6. a bushfire safety authority issued by the RFS subject to conditions under s 110B of the Rural Fires Act 1997 (NSW) dated 28 January 2020; 7. joint report on the development proposal's impact on koalas by Mr Cameron (Applicant's ecologist) and Dr Phillips (Council's koala expert) filed 29 January 2020. The experts disagreed on the long-term viability of the relevant koala population, whether the Applicant had proposed appropriate offset areas for the koala and the value of the proposed wildlife corridor in compensating for the loss of prime koala habitat. Mr Cameron stated that the proposal was consistent with principles of ecologically sustainable development, Dr Phillips disagreed; 8. joint report on ecological issues by Mr Cameron (Applicant's ecologist) and Mr Peake (Council's ecologist) filed 31 January 2020; 9. joint report on soil by Dr Cupper (Applicant's geomorphologist) and Dr Hazelton (Council's pedologist) filed 3 February 2020 where it was agreed that earlier acid soil testing was not satisfactory because of insufficient field sampling and detailed laboratory testing; 10. joint report of Mr Cameron (Applicant's ecologist), Dr Cupper (Applicant's geomorphologist), Dr Hazelton (Council's pedologist), Mr Peake (Council's ecologist) and Dr Wainwright (Council's coastal engineer) on the presence of EEC filed 5 February 2020 and amended 10 February 2020. The experts agreed that the existing assessments of whether or not the EEC was present on the Site were inadequate. This was because the existing assessments did not regard the EEC as being present, however through joint expert conferencing it was now agreed that it was; 11. memorandum of understanding between Coffs Harbour District Local Aboriginal Land Council and the Applicant provided 12 February 2020; 12. seven-part test of significance in relation to EEC prepared by Mr Cameron (Applicant's ecologist) dated 12 February 2020. Mr Cameron concluded that the viable local population of the EEC was not placed at risk of extinction as a result of the proposed development; 13. updated seven-part test of significance for koalas taking into account plans for the roundabout on Sawtell Road prepared by Mr Cameron (Applicant's ecologist) dated 12 February 2020. Mr Cameron concluded that a significant impact on the koala was unlikely; 14. amended subdivision plan provided by the Applicant to the Council on 13 February 2020; 15. detailed survey plans provided by the Applicant to the Council on 14 February 2020; 16. supplementary joint report on koalas by Mr Cameron (Applicant's ecologist) and Dr Phillips (Council's koala expert) filed 14 February 2020; 17. vegetation management plan provided by the Applicant on 16 February 2020; and 18. amended plans for Sawtell Road roundabout provided by the Applicant on 16 February 2020.
The following reports were also referred to in Ms Hewitt's affidavit dated 13 October 2020: 1. individual expert report of Dr Hazelton (Council's pedologist) on soil issues dated 8 January 2020; and 2. individual expert report of Mr Peake (Council's ecologist) on ecological issues filed 17 January 2020.

[16]

Gibson affidavit 15 October 2019

The Applicant to a limited extent relied on the affidavit of Ms Gibson solicitor dated 15 October 2019 affirmed in support of the Applicant's notice of motion dated 15 October 2019 seeking an order allowing reliance on amended plans. Exhibited to Ms Gibson's affidavit were two volumes of documents marked NSG-1 which became Ex 2. Seven documents included in Ex 2 appear to have been prepared for the DA lodged in April 2018. Six of these documents were included in Ex A (see above in [19]). The additional document included in Ex 2 was a site analysis plan dated 12 April 2018.
Ms Gibson was instructed that other documents in Ex 2 addressed the issues raised in the Council's SOFAC dated 19 October 2018. The following documents from Ex 2 are noted in addition to those that have already been identified from Ex A above in [27]-[28]: 1. wallum froglet seven-part test of significance by Mr Cameron (Applicant's ecologist) dated 23 September 2018; 2. amended staging plan dated 19 May 2019; 3. GHD Pty Ltd letter and plan regarding the roundabout dated 20 May 2019 which supplemented the traffic impact assessment dated May 2019; 4. SWMP dated May 2019 which provided MUSIC modelling and water quality discharge information; 5. GHD Pty Ltd traffic impact assessment dated May 2019; 6. memorandum of understanding between the Coffs Harbour and District Local Aboriginal Land Council and the Applicant dated 22 May 2019 which set out an option for biodiversity offsetting; 7. amended engineering plans dated September 2019 for the site plan, earthworks, road, road long section, sewer long section, stormwater drainage and stormwater long section; 8. amended bus access plan dated 13 September 2019; 9. amended Site plan dated 14 October 2019; 10. revised SEE for the amended plan dated October 2019; 11. updated ecology assessment by Mr Cameron dated October 2019 which stated there would be no significant impact to biodiversity; 12. draft Dedication of Land VPA between Council and the Applicant dated October 2019 which supplemented the draft explanatory note supplied with the DA; 13. draft Platypus Junction VPA between Council and the Applicant dated October 2019 which supplemented the draft explanatory note supplied with the DA.
Also included in Ex 2 were updated plans for the roundabout on Sawtell Road dated February 2020.

[21]

Council's submissions

The Council says that it is entitled to an order for its costs of the proceedings as summarised below: 1. Firstly, the proceedings involved, as a central issue, mixed questions of fact and law or questions of fact that were, or potentially were, determinative of the proceedings and preliminary to an evaluation of the merits of the application, within the meaning of r 3.7(3)(a) of the LEC Rules. Following the Respondent's submissions to the effect that it had not conceded, based on its experts, that an SIS was needed that remained an outstanding merits issue at the hearing which was a matter that the Court had to determine ie whether there was a significant impact on an EEC and/or threatened species of fauna posed by the DA. Consequently, r 3.7(3)(a)(ii) could not apply as a merits evaluation was necessary. Ultimately this ground could not be pressed by the Council as it accepted that was the Applicant's position at the hearing. 2. Secondly, the Applicant failed to provide, or unreasonably delayed in providing, information or documents that were required by law in relation to the application and/or that were necessary to enable the consent authority to give proper consideration to the application, within the meaning of r 3.7(3)(b) of the LEC Rules. 3. Thirdly, the Applicant acted unreasonably in the conduct of the proceedings by its repeated failure to respond to or address the contentions raised by the Council in the proceedings, within the meaning of r 3.7(3)(d) of the LEC Rules. 4. Fourthly, the Applicant continued the appeal where it did not, having failed to provide information or documents required by law and/or required to enable the consent authority to properly consider the application, have reasonable prospects of success, within the meaning of r 3.7(3)(f) of the LEC Rules. 5. Fifthly, the Applicant's conduct in discontinuing the proceedings on the fifth day of a seven day hearing provides circumstances in which the making of an order in favour of the Council would be fair and reasonable pursuant to r 3.7(2) of the LEC Rules.

[23]

Failure to respond and address contentions r 3.7(3)(d)

The Applicant's failure to provide the information and documents required by law to enable the consent authority to gain a proper understanding of, and give proper consideration to, the application was conduct that failed to respond to the case put forward by the SOFAC and was unreasonable conduct in the proceedings consistent with r 3.7(3)(d) of the LEC Rules.
The Council made multiple requests for information, prior to the proceedings and during the proceedings including: 1. the Council's letters dated 23 August 2018; 2. the Council's discussion with the Applicant on 29 August 2018; 3. the Council's SOFAC filed 19 October 2018; 4. the Council's letter dated 27 February 2019; 5. the Council's letter dated 9 April 2019; 6. during the conciliation conference process (held from 30 April 2019, adjourned and terminated on 29 July 2019; and 7. the Council's ASOFAC filed 25 November 2019.
The information requested by the Council was required to properly consider the DA and ought to have been provided at the time of lodgement.
The majority of the documents which the Applicant relied upon were prepared during or shortly before the final hearing of the matter, including: 1. seven-part test for EEC prepared by Mr Cameron provided on 12 February 2020 (Ex F in the Class 1 proceedings); 2. seven-part test for koala (taking into account clearing for proposed roundabout) provided on 12 February 2020 (Ex G in the Class 1 proceedings); 3. Platypus Junction VPA provided on 17 February 2020 (Ex H in the Class 1 proceedings); 4. updated acid sulfate management plan provided on 17 February 2020 (Ex J in the Class 1 proceedings); 5. vegetation management plan provided on 16 February 2020 (Ex K in the Class 1 proceedings); 6. detailed survey provided on 14 February 2020 (Ex N in the Class 1 proceedings); 7. amended SWMP and stormwater engineering plans provided on 19 February 2020 (Ex O in the Class 1 proceedings); 8. amended subdivision plan provided on 13 February 2020 (MFI-1 in the Class 1 proceedings).
At the time of discontinuance the Applicant had not provided engineering plans requested by the Council in its letter of 23 August 2018 and subsequently in the proceedings. The SWMP and engineering plans filed by the Applicant on 19 February 2020 were not accompanied by any assessment of the vegetation clearing the proposed engineering work required. The DA was incapable of approval without that analysis. The failure to provide adequate engineering plans was unrelated to Dr Wainwright's report which confirmed the presence of EEC.
In relation to the presence of EEC and lack of a hydrology study, the Council asked consistently for such a study to be undertaken by the Applicant. This was reasonable given that EEC was mapped on the Site and it was adjacent to coastal flood plain. The Applicant failed to assess this. It was unreasonable for the Applicant to rely on the s 149(2) planning certificate and the Council's flood studies. The Applicant failed to obtain expert advice from the appropriate discipline of hydrology, relying only on ecological evidence. Ultimately the Council engaged an expert hydrologist Dr Wainwright to fill a clear gap in the evidence concerning the EEC.
Dr Wainwright's report did not cause a change in the subdivision plan. Nor did the bushfire safety authority have to cause changes. The Applicant's case went beyond the usual changes that can be tolerated in Class 1 proceedings. Even when discontinued, there was no satisfactory explanation for why the DA was capable of approval. Assessment of the impact of clearing necessary for infrastructure was never made. The DA was patently inadequate as identified consistently in the letters of 23 August 2018, the SOFAC and the ASOFAC.
In terms of the requirements in Sch 1 of the EPA Regulation of documents required with a DA (i) cl 2(1)(g) preliminary engineering drawings were not filed until 19 February 2020; (ii) the site plan/sketch of the actual development proposed/survey was provided the week before the hearing - the sketch did not accurately show the final extent of the stormwater infrastructure and (iii) the SEE failed to identify the extent of environmental impact of what was proposed in relation to stormwater in particular.
Fourteen contentions were still pressed at the hearing, including in contention 14, eight areas where information was lacking. The Applicant acted unreasonably in not providing a DA capable of approval.

[26]

Applicant's submissions

The Council has unreasonably delayed in the filing of its notice of motion causing prejudice to the Applicant. Firstly, because it has been in a poor financial position since March/April 2020 due to business downturn resulting from the impact of the COVID-19 virus and, secondly, it could not afford to brief its former legal team to assist on the costs hearing and also due to the passage of time. The documents required to be assembled were those before the Court in the Class 1 appeal, their compilation was not unduly difficult.
Rule 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) concerning costs on discontinuance does not apply in the Court (see Sch 1 application of rules). Part 3 r 3.7 of the LEC Rules does not include discontinuance as a circumstance justifying the payment of costs by the discontinuing party. The discontinuance of the proceedings on day five of the hearing was appropriate and responsible. The Applicant acted swiftly to bring proceedings to an end saving two to three days of hearing time and cost.
The Applicant discontinued the proceedings on 21 February 2020, the third day of the hearing, as the evidence of Dr Wainwright hydrologist resulted in the identification of EEC on site to a greater extent than the Council's experts had considered and the stormwater drainage basin intruded into the EEC area more than had been assessed. The ecological experts had not considered the percentage loss of EEC as then understood which might result from constructing a drainage basin, bunds and swales. Until the morning of 21 February 2020, the Applicant's experts had said 0.9% of EEC would be cleared. With new evidence between 40% and 50% might result in being cleared in light of drainage plans produced on 19 February 2020. The Applicant chose to discontinue as it seemed unlikely development consent would be granted by the Court without far more work being undertaken and there was insufficient hearing time to do so. The Council did not dispute this submission.
Dr Wainwright's report produced on 28 January 2020 determined for the first time that the 1:100 flood event was co-incident with the 2.9 m contour line, effectively the 3 m contour. Prior to that report both parties had believed the Site was not subject to the 1:100 flood event. The s 149(2) planning certificate and the Council's flood maps did not indicate that the Site was flood prone. As that area up to the 3 m contour is deemed to be waterlogged as a result of Dr Wainwright's report, it met the description of the EEC by the Scientific Committee. Consequently, the amended stormwater retention basin intruded into the EEC to a greater extent than had been assessed. Mr Cameron undertook a further seven-part test for the EEC in light of Ex 27 overnight on 20 February 2020. His report stated that up to 50% of EEC could be removed and consequently there was a likely significant impact on the EEC. This was considered in court on 21 February 2020. The calculation of the area of EEC arose as a result of evidence from the Council produced very close to the hearing. Whether a SIS was required was a legitimate debate as the Applicant's experts considered there was no significant impact on EEC, koala, squirrel glider or brush-tailed phascogale in light of their understanding of the limited EEC on the Site until the receipt of Dr Wainwright's report. Discontinuing was appropriate to avoid continuing without reasonable prospects of success and saved court time and further costs.
The need to amend the subdivision plans arose firstly, from Dr Wainwright's report produced 28 January 2020 and, secondly, the issuing of a bushfire safety authority by the RFS on 28 January 2020.
As a result of the RFS bushfire safety authority, the Applicant had to widen the road width from 7.5 m to 8 m and this required additional drainage inter alia. A full set of engineering plans was triggered by bushfire safety requirements received very close to the hearing. Until these two new pieces of important information were received the Applicant had not considered it necessary to calculate the impact of stormwater drainage on the EEC as no impact was identified by its experts. The amended stormwater drainage plan was produced on 19 February 2020 and an amended subdivision plan on 13 February 2020 to respond to the new information. Until Dr Wainwright's report was received, which the Applicant accepted, its case that there was no significant impact on EEC or threatened species was arguable.
The correspondence between the Council and the RFS is attached to the affidavit of Mr Smith sworn 3 December 2020. Correspondence between the Council and the Applicant was exhibited to the affidavit of Mr Stevens 3 November 2020 (see above in [45]). The Applicant did not receive the RFS letter dated 27 June 2018 (the Council said this was sent with its letter to the Applicant of 23 August 2018). The Applicant saw the letter on the Council file when this was reviewed after 26 October 2018. The Applicant provided three responses to the RFS in letters sent by the Council dated 20 May 2019, 29 August 2019 and 23 January 2020. By the time the Applicant became aware of the RFS requirements, the 100 day period had expired and re-assessment was necessary. The RFS did not respond until 28 January 2020 bushfire safety authority was issued.
While the provision of some information by the Applicant was piecemeal, it has been the subject of two costs orders. Discontinuing was a responsible action, as identified in Ross v Lane Cove Council [2013] NSWLEC 109 at [9]-[10]; Marinkovic v Rockdale City Council (2007) 151 LGERA 385; [2007] NSWLEC 71 (Marinkovic) at [20].
Orders for costs under s 8.15(3) of the EPA Act were made when the Applicant was given leave to rely on amended subdivision plans in October 2019 and again on 13 February 2020.
The amendment of documents is a common occurrence in litigation and is not a basis for the awarding of costs in Class 1.
The parties agreed that the Applicant's case in the proceedings was that there was no SIS required because the DA had no significant impact on EEC or endangered species and animals. The Applicant's case was not obviously hopeless.
At the most, the costs following the amendment of the subdivision plan on 13 February 2020 introduced into evidence on 19 February 2020 to when the order was made on 20 February 2020, and costs of 21 February 2020, could be payable.
The Council complains of delay in the provision of stormwater engineering plans according to its letter of 23 August 2018, the SOFAC and ASOFAC. There was a joint report of the engineering experts dated 28 January 2020. The Applicant did more work. There was a supplementary joint report provided on 19 February 2020. The Council's contention was ultimately satisfied on day three of the hearing.
Preliminary engineering plans were lodged with the DA, contrary to the Council's submission that engineering plans were not provided. These identified a bio retention basin. I note that the only evidence of engineering plans that I can identify before me are the engineering plans dated May 2019 as they were revised in September 2019, included in Ex 2.

[27]

Consideration

Costs are compensatory not punitive: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 567 per McHugh J.
Should the Council be able to file and argue its notice of motion more than 28 days after the hearing finished? The Council filed its notice of motion seven months after the appeal was discontinued. No explanation for that delay is identified in the affidavit supporting the notice of motion (see above in [11]). The Council submitted that the evidence necessary to be collated was voluminous and took a lot of time to prepare. The Council wrote to the Applicant by letter dated 29 May 2020, many months after the hearing, setting out its position on costs and offering to settle for less than the $368,515.75 incurred by the Council.
I agree with the Applicant that the substantial delay in filing the notice of motion seeking costs is not adequately explained by the Council, with the submission made by its representative from the bar table that the delay was regrettable. Given that the documents were well known to the Council, that there are a lot of these is not of itself a sufficient explanation, particularly as that was also made as a submission from the bar table. The 28 days identified in the Practice Note is not a binding rule, meaning that it is not a formal bar to the filing of the notice of motion. Good practice suggests that the nominated period of 28 days after a hearing is completed is to ensure a timely resolution of costs. A notice of motion seeking costs filed seven months after a hearing is completed is not timely. The hearing of the notice of motion has taken place approximately a year after the Class 1 appeal was discontinued. The longer the period between such events the greater the task for parties and their representatives to "get up to speed". In this case the Applicant's financial position changed substantially for the worse due to the COVID-19 pandemic, particularly for the period between April to June 2020, according to Mr Stevens' affidavit affirmed 12 February 2021. Given that any hearing of the motion would have occurred after the Applicant was in financial difficulty, the Applicant would have had such a problem even if the Council had acted in a timely manner. Nevertheless, I accept that the Applicant has been prejudiced by the delay and was not able to be legally represented on the first day of what has been a complicated hearing on costs. I will determine the motion but consider that the Council's unexplained delay is a countervailing matter which I will take into account if I determine that any costs are payable to it by the Applicant.
The predecessor to r 3.7 of the LEC Rules was Pt 16, r 4(2) of the Land and Environment Court Rules 1996. This was in substantially the same terms as the current rule, which I note because some of the authorities referred to by the parties were considering the former rule. The non-discouragement principle underpins the presumption that there be no order as to costs in Class 1 merits appeals, expressed by Talbot J in Aldi Foods Pty Ltd v Holroyd City Council (2005) 142 LGERA 141; [2005] NSWLEC 338 (Aldi Foods) at [5] as follows: The Rules make it plain that the approach to an application for an order for costs in class 1 proceedings is fundamentally unchanged from the historical position to the extent that the underlying principle is that there will generally be no order as to costs. Accordingly, unless it is in the circumstances of the particular case otherwise fair and reasonable, the Court will approach the exercise of its discretion on the basis that parties are to remain confident they may commence or defend proceedings without the onerous threat of incurring liability for costs other than their own, even if they are not the successful party. In other words costs will not be awarded in the proceedings referred to in Part 16, rule 4 unless it is fair and reasonable to depart from the underlying assumption in the circumstances of the particular case. Reasonableness is to be determined according to the ordinary sense of the word. The award of costs has to be fair as well as reasonable. Thus not only must it be reasonable for costs to be awarded but it must also be just and equitable.
In Statewide an applicant was ordered to pay the whole of the costs of Class 1 appeal proceedings in circumstances where a DA was ultimately granted after considerable Court time was spent on numerous occasions to enable the applicant to get its documents in order. Sheahan J was satisfied based on the voluminous evidence provided that the applicant had filed a patently inadequate DA and filed inconsistent documents once an appeal was commenced, at [150]-[158]. The Council relied on Sheahan J's observation that the council waited more than a year for information which it had consistently asked for during that time and which should have accompanied the DA, at [155]. Sheahan J noted the "non-discouragement" principle underpinning the usual rule that no costs are payable in Class 1 appeals and usefully considered a number of authorities of the Court and the Court of Appeal at [133]-[146] on the issue of costs in Class 1 appeals citing the above extract from Aldi Foods at [135].
Marinkovic relied on by the Applicant recognised the appropriateness of the generation of amended plans in the course of an appeal as a means of responding to the concerns of the Court and court-appointed experts inter alia, at [22], identifying that there must be a limit on that capacity, at [23]. The circumstances being relied on here by the Council are not generally similar to those considered in Marinkovic in that the number of amendments to plans (two) with consequent costs orders are not separately complained about. The Council is complaining more generally about the adequacy of the DA and the conduct of the Applicant in the appeal process, similar to the circumstances in Statewide.

[29]

Adequacy of the development application / unreasonable conduct of proceedings (r 3.7(3)(b) / (d))

The remainder of the Council's case (see [51(c)]) relying on r 3.7(3)(b)/(d) concerns, in the Council's view, the poor preparation of the DA and of this appeal by the Applicant being so unreasonable as to justify an award of costs in its favour.
I note that in its submissions the Council predominantly referred to the documents and reports that related to the presence of the EEC, the impact of the proposed development on the koala, brush-tailed phascogale and squirrel glider, stormwater and traffic.
Considering r 3.7(3)(b)(i) and (ii), these subsections identify failing to provide information or documents required by law to be provided in relation to any application and/or necessary to enable the consent authority to understand and consider properly any application, focussing therefore on the adequacy of the DA. Important context is the nature and extent of the Applicant's proposed development, which consisted initially of a substantial subdivision of 57 lots for residential development, a lot for a childcare centre and a lot for seniors living accommodation on a sensitive site environmentally containing mapped EEC and prime koala habitat, as identified in the SOFAC (in [8] above) inter alia.
The Council's complaint identified in its letters of 23 August 2018 is that the Applicant failed at the DA stage in the provision of adequate information as summarised above in [20]-[22] concerning the proposed offset arrangements and dedication of land under proposed VPAs, whether the EEC was present and if an SIS was required. The proposed removal of 6.99 ha of primary koala habitat was inconsistent with the Coffs Harbour Local Environmental Plan 2013 and the Coffs Harbour City Koala Plan of Management 1999, and the proposed offsets were non-compliant with the DCP. Essential information and reports lacking, identified above in [23], were in relation to Aboriginal cultural heritage; acid sulfate soils; bushfire safety; engineering plans in relation to sewer and water, stormwater, cut and fill required, and for the proposed roundabout on Sawtell Road; offset arrangements; impact on the wallum froglet habitat and traffic as well as analysis of impact of the proposed development on the EEC that the Council maintained was located on the Site; and impacts on threatened fauna, the koala, brush-tailed phascogale and squirrel glider.
The Council asserts and I accept that information required by Sch 1 of the EPA Regulation was not provided as set out above in [61].
According to the Council, one of the areas lacking in the DA were engineering plans. The Applicant submitted that engineering plans were submitted with the DA. This is disputed by the Council. The earliest engineering plans in evidence are dated May 2019, with revisions dated September 2019, well after the DA was lodged in April 2018 and were exhibited to Ms Gibson's affidavit dated 15 October 2019. These plans were prepared leading up to the first amendment of the subdivision plan in October 2019. The Council's complaint appears to be well founded.
For the reasons given by the Council based on the voluminous evidence set out above in [19]-[23], described above in [91], the DA was quite inadequate in key respects and did not enable the Council to gain a proper understanding of the application and consequently could not give proper consideration to it. The Council's letters dated 23 August 2018 identified a large number of matters where significant information was lacking. I consider the Applicant's DA was poorly prepared and lacked essential information, which absence was not cured in several important areas until shortly before or during the court hearing in February 2020 or at all in relation to engineering matters identified by the engineers in joint conference (set out above in [33(e)]) and the impact of vegetation clearing, including on EEC, required by what was proposed.
The Applicant's submission that its experts supported the DA can have little weight given the substantial deficiencies identified in the DA. The Applicant was also critical of the Council in responding to the DA lodged in April 2018 by letters dated 23 August 2018. Given the substantial issues identified in those letters I do not consider that is a valid criticism for costs purposes.
These conclusions concerning the inadequacy of the DA are also supported by what occurred in the course of the lengthy hearing preparation and events immediately before and during the hearing in February 2019, matters raised in relation to r 3.7(3)(d).
Rule 3.7(3)(d) concerns unreasonable conduct in proceedings in failing to respond or address contentions raised by the Council. The same deficiencies concerning insufficient information at the DA stage were identified in the SOFAC dated 19 October 2018 as set out above in [25] concerning Aboriginal cultural heritage, acid sulfate soils, bushfire safety, engineering plans in relation to sewerage systems and potable water, stormwater, cut and fill, offset arrangements, impact on the wallum froglet habitat and traffic, as well as the EEC and threatened fauna. The SOFAC dated 19 October 2018 also identified that it was not clear what the proposal entailed, that the DA did not include a flood assessment, fauna survey or identify the extent of vegetation clearing required. Inadequate information had been provided as set out above in [24] concerning whether or not the EEC was present on the Site, to enable a proper assessment of the soil, to allow a bushfire safety authority to be granted, to be able to secure offset arrangements under a proposed VPA and to demonstrate how the proposed stormwater engineering plan would be satisfactorily managed. No traffic study had been submitted.
The amended plans permitted in October 2019 removed the seniors living accommodation and the public reserve for the purpose of a playground/community open space, increased the wildlife corridor from 50 m to 80 m and required the clearing of 6.15 ha of vegetation, which included primary koala habitat, as opposed to 6.99 ha of clearing required in the original DA. The ASOFAC dated 25 November 2019 extracted above in [32] identified similar deficiencies again in relation to what the proposal actually entailed; acid sulfate soils, that matter being ultimately addressed satisfactorily (see the supplementary joint report of Dr Cupper and Dr Hazelton dated 18 February 2020 above in [36(c)]); bushfire safety, that matter being ultimately addressed by the provision of a bushfire safety authority by the RFS dated 28 January 2020 (see above in [33(f)]); engineering plans in relation to sewerage systems and potable water, stormwater, cut and fill, offset arrangements, flood assessment; whether an EEC was present on the Site; impact on threatened species; traffic; insufficient SEE; and supporting documents and the extent of vegetation clearing required.
The Council's concerns about the DA continued into the appeal with the SOFAC identifying a large number of merit issues and 11 areas where information supplied was lacking or inadequate (see [25] above). The Council's concerns are borne out by the very large number of reports prepared in response to the SOFAC, as detailed in [26]-[29] above. The ASOFAC prepared after the Applicant was given leave to amend plans in October 2019 continued to identify numerous merit issues and identified eight areas where information was lacking, see [32] above. Further significant reports were filed not long before or at the hearing, as identified in summary in [35]-[36] above.
The Council says that the number of failures to provide information on fundamental matters when considered collectively over many months, not just each single instance of delay, demonstrates unreasonable behaviour warranting an award of costs. The chronology above in [9] identifies the substantial number of steps taken in the appeal in relation to evidence preparation which included the preparation of numerous expert reports.
A large number of reports in relation to threatened species, whether an SIS was required and the expected impact on EEC were prepared and filed in this appeal. For example, the following reports are identified as having been prepared: assessment of significance for threatened species including the koala (incorrectly titled koala SIS) dated 26 June 2019; a document that purported to be a koala SIS (the Council says not legally compliant) dated 26 June 2019 and information on how the Coffs Harbour City Koala Plan of Management 1999 was addressed dated 26 June 2019; koala report prepared by Dr Phillips filed 20 December 2019; and an updated ecology report by Mr Cameron dated 23 December 2019.
Multiple joint reports on koalas and the presence of EEC were provided in the lead-up to the hearing. In the joint report on koalas by Mr Cameron and Dr Phillips filed 29 January 2020, the experts disagreed on the long-term viability of the relevant koala population, whether the Applicant had proposed appropriate offset areas for the koala and the value of the proposed wildlife corridor in compensating for the loss of prime koala habitat (see in [33(g)]). Mr Cameron stated that the proposal was consistent with principles of ecologically sustainable development and Dr Phillips disagreed. In the joint report on EEC by Mr Cameron, Dr Cupper, Dr Hazelton, Mr Peake and Dr Wainwright filed on 5 February 2021 and amended on 10 February 2021, the experts agreed that existing assessments were inadequate and that the EEC was present on the Site (see in [33(j)]).
The provision of further reports over the course of the appeal while characterised as acceptably "piecemeal" in the Applicant's submissions went well beyond what is usual and acceptable in a Class 1 appeal. A number of reports were provided late - meaning very close to the hearing (see above [33]-[35]), or very late - meaning during the hearing, including the acid sulfate soils management plan and engineering plans in particular concerning traffic (see above in [36]). Similar to the circumstances in Statewide at [155], the Council had to wait over 12 months to obtain adequate reports in key areas. Further, the material provided on numerous occasions by the Applicant was well in excess of what arises from the usual interaction between parties' experts in Class 1 merit appeals.
The Applicant submits that the reason for the second amendment of subdivision plans dated 13 February 2020 filed in court on 19 February 2020 during the hearing was because of bushfire safety requirements which the Applicant was only notified of on 28 January 2020 when the conditional bushfire safety authority was issued by the RFS under s 110B of the Rural Fires Act 1997 (NSW).
Considering the timeline for what occurred in relation to bushfire safety assessment, the Council's letter to the Applicant dated 23 August 2018 stated that the DA did not provide sufficient information to enable to the RFS to undertake a proper assessment in relation to bushfire risk. The Council says that included with the letters dated 23 August 2018 was a letter from the RFS dated 27 June 2018 requesting further information (see above in [13]). The Class 1 appeal was commenced on 21 September 2018. The Applicant asserts that it did not see the RFS request dated 27 June 2018 until 26 October 2018 when it inspected the Council's file in these proceedings (see above in [45] and [73]). By that time the 100 days to provide further information had expired. The Applicant was told directly by the RFS in a letter dated 9 January 2019 to re-submit a bushfire report for assessment through the Council. The Applicant provided the Council with responses on bushfire safety dated 20 May 2019, 29 July 2019 and 16 January 2020. These responses were sent by the Council to the RFS on 20 May 2019, 29 August 2019 and 23 January 2020 respectively (see above in [48]). I note the RFS wrote to the Council seeking further information by letter dated 17 July 2019 after receipt of the 20 May 2019 letter from the Council. The RFS issued the Applicant with a bushfire safety authority subject to conditions on 28 January 2020.
I do not need to resolve whether the Applicant did or did not receive the initial RFS letter dated 27 June 2018 to conclude that the Applicant took a long time to satisfy the RFS requirements, responding on three occasions over several months. That the RFS did not issue a bushfire safety authority until 28 January 2020 reflects that lengthy history. This caused delay in the preparation of the Applicant's subdivision plans which resulted in a very late amendment of the subdivision plans in February 2020 to widen roads, with consequential design impacts including greater runoff requiring amendment of stormwater engineering plans.
Most of the reports prepared and filed immediately before the hearing and during the hearing are summarised in [50] above. An important factual issue that existed from the time the DA was lodged and remained in issue until close to the outset of the final hearing was how much EEC existed on the Site, the parties' ecological experts being fundamentally at odds on that issue in part because of the absence of hydrological evidence. Immediately before the hearing Dr Wainwright's hydrological report and Mr Cameron's seven-part tests for EEC dated 12 February 2020 and koalas dated 12 February 2020 were filed. Mr Cameron stated that the proposed development would not have a significant impact on either the EEC or koalas (see above in [33(l)] and [33(m)]).
The Applicant submitted that Dr Wainwright's hydrological report dated 28 January 2020 which the Council commissioned caused it to have to change the subdivision plans because the presence of EEC in a larger area was identified as a result of that report. As already noted above in [86], the Council's case on costs does not focus on the amendment of plans in any event but rather the surrounding circumstances in the appeal.
The Council raised the presence of mapped EEC on the Site from the time of its response to receipt of the DA in the letters of 23 August 2018. The late arrival of Dr Wainwright's report on hydrology prepared for the Council had a significant impact on the Applicants' case, namely it accepted that there was a substantial area of EEC on the Site.
The Council's town planner prepared a plan overlaying the amended stormwater engineering plan dated 19 February 2020 on the accepted area of EEC, Ex 26 (Ex B) and Ex 27 (Ex 3) on 20 February 2020, the fourth day of hearing. The scale of potential impact in relation to the EEC as identified in these exhibits was not identified or assessed. Mr Cameron prepared a further seven-part test on the EEC dated 20 February 2020 (see [36(e)]).
The Applicant discontinued the appeal on 21 February 2020 because according to its counsel it did not consider it could undertake the necessary assessment of the proposed development within the timeframe of the hearing given the late information obtained about the extent of EEC.
An applicant for development consent must demonstrate to a council, and the Court if there is an appeal, that its DA ought to be approved. In that regard, it bears an onus of persuasion. That requires it to provide in a timely fashion adequate expert reports as necessary to enable a proper understanding of a DA. Identification of EEC is generally a matter of ecological and often hydrological and pedological expert evidence because of the description of a particular community by the Scientific Committee under the TSC Act (now repealed) and the BC Act. According to the ecologist's report lodged in support of the DA extracted above in [19(d)], hydrological evidence was to be dealt with by ancillary information arising from a personal communication from one of Mr Steven's companies, REDCC. No hydrologist report was commissioned by the Applicant on a fundamental matter concerning the location of the EEC. The Applicant contested the mapped area of EEC on the basis of the Council's flood study and s 149(2) planning certificate and, it appears, from the paragraph extracted above in [19(d)], also told its then ecologist BushfireSafe (Aust) Pty Ltd to adopt that approach. In the end the Council obtained the necessary hydrologist's report very close to the hearing which vindicated its position. The provision of that report was largely the reason the proceedings were discontinued by the Applicant, some 18 months after the Class 1 appeal was lodged, on the fifth day of hearing. On such a fundamental issue for the success of the DA, the Applicant should have done far more to resolve the issue of the extent of the EEC, ideally before the proceedings were commenced or much earlier in the course of the proceedings.
I consider the Applicant should have obtained hydrological evidence to attempt to vindicate its position that there was no or very little EEC on the Site. Its stance led to extended and unnecessary Court time spent on an issue that was a significant stumbling block to approval. The subdivision development was a large one and required the requisite level of appropriate expert support. Relying on the Council's flood plain study and s 149(2) planning certificate which are directed to whether development controls are applicable to a particular location was unreasonable in the circumstances of a large subdivision development on an environmentally sensitive site where EEC had been mapped. Such ecological and hydrological issues remained in dispute from the time the DA was responded to by the Council's letters of 23 August 2018 until just before the Class 1 proceedings in February 2020, which were discontinued by the Applicant due to this very issue. The late preparation of essential evidence on behalf of the consent authority was evidence which the Applicant could have just as readily obtained when the DA was lodged or at least taken more steps to clarify the extent of the EEC in terms of obtaining appropriate expert evidence. While the Applicant submitted that Dr Wainwright had access to additional water modelling data known only to the Council, that is a submission. Had the Applicant obtained adequate and timely hydrological evidence from an expert, matters relevant to the EEC may well have been able to be clarified with the Council at a far earlier stage.
Separate from the extent of the EEC question, as the Council submitted and as noted above in [94], key information to enable adequate assessment was never provided. In relation to stormwater, the Council highlighted the issues raised in the joint report produced by Mrs Rhodes and Mr Green filed on 28 January 2020, and the amended SWMP and stormwater engineering plans showing proposed swale drains and bioretention basin design that were provided to the Council on 19 February 2020.
An assessment of the impact of vegetation clearing required by the engineering works was never provided and engineering issues identified in the joint report filed 28 January 2020 remained outstanding at the end. The Applicant's and Council's engineering experts had agreed in their report filed 28 January 2020 that the engineering plans and documents submitted for the DA were generally satisfactory, except for specific matters raised with respect to the SWMP dated May 2019, the proposed roundabout on Sawtell Road and the public interest (which was a matter outside their expertise). The experts agreed that the MUSIC model and SWMP dated May 2019 were required to be updated to reflect the September 2019 engineering drawings, including the preparation of the concept design and layout of the proposed WSUD infrastructure. The experts agreed that the potential removal of vegetation trees for the roundabout, and a number of other engineering works, should be referred to others for consideration.
The Council has established that the Applicant acted unreasonably in failing to provide adequate information in relation to the DA as referred to in r 3.7(3)(b) and in the conduct of the proceedings as identified in r 3.7(3)(d).

[30]

No outcome of appeal to inform merit issues (r 3.7(3)(f))

There was no final determination of the merits of the Applicant's DA by the Court and consequently no judgment to inform my costs consideration in relation to some of the Council's arguments which require a merits determination to resolve. A court should not determine the merits of a matter as part of determining costs (Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 per McHugh J at 624). There were a number of reports dealing with whether or not a SIS was necessary, for example, reports filed by the Applicant's experts in support of the DA which stated that a SIS was not necessary, Mr Cameron produced an assessment of significance for the koala, brush-tailed phascogale, squirrel glider and microbats and a purported koala SIS dated 26 June 2019 and a further report dated 23 December 2019 stating that in light of the amended development proposal, a SIS was not necessary for the koala, squirrel glider or brush-tailed phascogale. An analysis of the overall adequacy of the Applicant's expert evidence is beyond my role in this costs application. What I can and do take into account is the large number of reports prepared in an appeal that was ultimately discontinued on a fundamental matter of fact in issue.
The Council also relies on r 3.7(3)(f), that a party continues a claim where it did not have reasonable prospects of success. The Council referred to its offer to discontinue on the basis each party pays its own costs on 2 August 2019 yet the Applicant pressed on but ultimately discontinued the proceedings. There is merit in this submission given the history of the proceedings.
The failures the Council has identified in the preparation of the DA and of the Applicant's case in the appeal are substantial. The circumstances referred to in r 3.7(3)(b)(i) and (ii) and r 3.7(3)(d) are established. A basis for awarding the costs of the whole proceedings has been made out as both fair and reasonable given the history of the matter and the very large expenditure of the Council reflecting that history. Given the late application for costs, there are countervailing circumstances suggesting that an award of costs should be reduced. A partial award of costs in the Council's favour is warranted in addition to the two existing costs orders under s 8.15(3) of the EPA Act. I consider the Applicant should pay three quarters of the Council's costs in addition to the two existing costs orders.
As the Council has been largely successful in this costs application it should also have a costs order in its favour.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (10)

Cited By (4)