Solicitors:
A Oshlack, agent (Applicant)
Department of Planning (First Respondent)
McCartney Young Lawyers (Second Respondent)
Dentons (Third to Fifth Respondents)
File Number(s): 2019/6908
[2]
Judgment
In Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 ("Ryan No 4") development consent 2017/270 issued to the Third Respondent Winten (No 12) Pty Ltd (Winten) by Lismore City Council (the Council) for a subdivision development at Lot 2 DP 1214953 and Lot 3 DP 808657, Lismore (the site) was found to be invalid. The issue of whether consequential orders requiring restoration of the site should be made remains outstanding for various reasons. Mr Al Oshlack appeared as agent for the Applicant Mr Michael Ryan.
The site is in an area known as the North Lismore Plateau. It is 70.95 ha (Lot 2 DP 1214953), 8.091 ha (Lot 3 DP 808657), excluding roads, and was divided into three precincts for the purposes of the subdivision. The invalid development consent approved a subdivision plan to create a total of 433 residential allotments, a commercial allotment, open space and areas for environmental management. Dunoon Road runs along the eastern boundary of an area identified as Precinct 1.
In Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80 ("Ryan No 6") I resolved that an engineer and an ecologist should have access to the site and required the parties to confer on an agreed brief. The Applicant was to provide details of the experts' identities and their qualifications to Winten. The experts Mr Hammond engineer and Mr Doyle ecologist have now been identified satisfactorily but the brief remains in contention as there is a dispute about which parts of the site should be reviewed, if at all, by them.
The areas subject to development works under the invalid development consent were Precinct 1, the haul road from Precinct 1 up a hill to an area on the plateau known as the borrow pit area, and the borrow pit area. Excavation of the borrow pit area for fill which was then placed on Precinct 1 occurred as part of the development consent declared invalid.
Winten has applied for and been granted a new development consent DA 5.2020.462.1 (the New DA) on 15 September 2021 by the Council for the subdivision of the area known as Precinct 1.
The Applicant accepts, appropriately, that there is no utility in making orders seeking remediation or restoration in relation to Precinct 1 and no access for any expert to this area is sought, but for one matter concerning the haul road I will discuss below.
[3]
At issue
There are four issues. Firstly, should the experts consider the haul road at all? The Applicant submits that they should, Winten opposes this.
Secondly, if the haul road should be considered by an engineer should the part in Precinct 1 the subject of the New DA be assessed by the experts?
Thirdly, the parties agree that an ecologist can review the borrow pit area but Winten does not agree that an engineer is needed to review this area.
Fourthly, the terms of any brief provided to the expert(s) was discussed and not completely agreed. I will identify the terms of any brief in this judgment.
[4]
Applicant's evidence
Mr Oshlack affirmed an affidavit dated 6 October 2021 attaching a draft brief for an engineer and the curriculum vitae (CV) for Mr Bruce Hammond civil engineer. The Applicant provided an updated version of the brief during the hearing.
[5]
Winten's evidence
Ms Christina Renner solicitor swore an affidavit dated 8 October 2021 which attached the following documents (Ex 1):
1. Mr Hammond's CV and the Applicant's draft brief for an engineer;
2. a copy of the New DA granted by the Council on 15 September 2021;
3. approved plans prepared by RPS Urban Design for the New DA;
4. civil engineering drawings prepared by Planit Consulting for the New DA including drawing number 1200 dated 7 July 2021 which shows that part of the haul road is included in the area the subject of the New DA;
5. construction certificate drawings prepared by Planit Consulting for the invalid development consent;
6. a conditional development consent for a road on the site granted on 14 April 2016;
7. a plan prepared by Planit Consulting using an aerial image sourced on 3 October 2021 which shows the excavated area of the borrow pit with a contour plan overlaid;
8. Vegetation Clearing Report and Tree Protection Plan prepared by Plaint Consulting dated February 2019;
9. an ecology report prepared by GeoLINK in relation to the area known as Precinct 1 dated 6 November 2019; and
10. various photographs taken on 3 October 2021 in the vicinity of the borrow pit area.
The affidavit identifies that development consent to DA 5.2016.7.1 was granted in 2016 for a road between the area now known as Precinct 1 and the plateau area where the borrow pit area is located. This remains in force, because of COVID legislation which extended the time for which development consents are valid by two years, to 14 April 2023 in relation to the road approved in 2016. Ms Renner is instructed that her client intends to build this road. The affidavit states that the location of the approved road largely overlaps with the existing haul road.
The plan for the New DA in Precinct 1 includes that part of the haul road located on the flat area where subdivision is planned along Dunoon Road.
Attached to the affidavit was a plan of the excavated area known as the borrow pit with a contour plan overlaid showing that a hill did exist in a large part of the excavated area. Various photographs showing the current state of the area were attached to the affidavit. The area has re-vegetated and the photographs do not show a pit per se. The borrow pit area was originally a hill which has been levelled according to Ms Renner.
Additional documents tendered as Ex 2 were a plan prepared by Planit Consulting showing the location of the road approved in 2016 overlayed on an aerial image of the existing haul road. A screenshot of the NSW planning portal identified an application under s 68 of the Local Government Act 1992 (NSW) made in relation to DA 5.2016.7.1 the subject of the 2016 road consent.
Winten also relied on Ms Renner's affidavit sworn 24 June 2021 and the attached documents which identified various stabilising works undertaken on the site in response to the Council's Order No 11 issued on 15 October 2020 referred to in Ryan No 6 including:
1. Environmental Damage Prevention Report prepared by Plaint Consulting dated 19 October 2020; and
2. a site inspection report prepared by Douglas Partners Pty Ltd dated 2 February 2021.
[6]
Applicant's submissions
The Applicant submitted that he was successful in the substantive proceedings, he has acted reasonably in not seeking orders to remediate Precinct 1, there is environmental harm such as pollution resulting from the haul road after rain events and it represents an environmental hazard, the 2016 road consent has only just been advised to the Applicant recently and there can be no certainty that this will be built in the future. An engineer should be briefed to consider the haul road in its entirety including that part of the road now located on the area approved for development in Precinct 1 by the New DA.
In addition to an ecologist, an engineer is necessary to consider the borrow pit area to determine if the landform requires modification to enable regeneration of vegetation.
An engineer should be briefed with the documents attached to Ms Renner's affidavit dated 8 October 2021 identified above in [12(2)]-[12(5)] and [12(7)]-[12(10)] which are plans of the site. An engineer should also be briefed with the environmental reports inter alia attached to Ms Renner's affidavit dated 24 June 2021.
In addition to what is included in Winten's proposed brief, the ecologist should also be briefed with the following documents from Ryan No 4:
1. joint report of Mr Milledge and Dr Robertson dated 29 January 2020;
2. Mr Milledge's first report dated 18 March 2019 reviewing a seven-part test of significance for micro-bat species;
3. Mr Milledge's second report dated 9 October 2019 detailing a brief field inspection of potential threatened micro-bat roosting and breeding habitat; and
4. Mr Milledge's third report dated 10 November 2019 on a two-night survey targeting threatened micro-bat species.
A further report by Mr Milledge dated 25 November 2019 considered by Robson J at the third injunction hearing should also be provided in the brief to the ecologist.
[7]
Winten's submissions
Given the existence of the 2016 road consent there is no utility in considering the haul road further. Ryan No 6 found that the Applicant had not established that water pollution following rain events was coming from the site and the Applicant has not produced any evidence to support the submission that this occurs after rain events as a result of the state of the haul road or that it represents an environmental hazard. Further there is no utility in considering that part of the haul road which is located on Precinct 1 in the location approved under the New DA.
The current landform of the borrow pit area can be seen in the photographs attached to Ms Renner's affidavit dated 8 October 2021 as not containing a pit. The excavation of this area removed a hill and did not result in any deep pit being created. No engineering assessment of this area is necessary.
Winten did not object to an ecologist inspecting the borrow pit area and its immediate surrounds for the purposes of providing an opinion of what if any revegetation measures should be taken. A proposed brief for the ecologist was provided.
If an engineering assessment is ordered, it is appropriate for the documents attached to Ms Renner's affidavit dated 8 October 2021 identified above in [12(5)]-[12(9)] to be included in the brief. The resulting documents sought to be included by the Applicant attached to the affidavit dated 8 October 2021 being the development consent, development plan, engineering plan and photographs are not relevant.
The documents attached to Ms Renner's affidavit dated 24 June 2021 are not relevant and should not be included in any brief.
Winten agreed the ecologist could be briefed with the joint report of Mr Milledge and Dr Robertson dated 29 January 2020. The rest of the documents sought to be included in the brief for the ecologist above in [21(2)]-[22] are probably not relevant. The ecologist should also receive Dr Robertson's report dated 27 December 2019 referred to in Ryan No 4.
[8]
Consideration
Considering the haul road (the first and second issues), and Winten's 2016 road consent, Ms Renner's evidence was largely indirect in that she attests to her client's instructions in various respects. Given the very recent notice to the Applicant of the existence of the 2016 road consent and therefore his inability to scrutinise the terms of the consent I do not consider that provides sufficient reason not to have an engineer consider the present state of the haul road to provide a report on what should be done. In the ordinary course that is what the Applicant could reasonably expect would occur following Ryan No 6.
Concerning that part of the haul road located in the area subject of the New DA I agree with Winten that there is no utility considering that part of the haul road in Precinct 1 recently approved for subdivision as shown in the civil engineering plan 1200 dated 7 July 2021, see above in [12(4)].
In relation to the third issue, the engineer Mr Hammond should also review the borrow pit area. While photographs have been provided by Winten of the current landform the amount of material removed for fill is unknown. If the landform is as benign as Winten submits the engineer need spend little time on this area but should nevertheless have the opportunity to consider it.
A brief for the engineer Mr Hammond based on the parties' submissions is attached as "Annexure A".
The ecologist Mr Doyle should also consider the haul road. The brief for the ecologist for the borrow pit area can be amended to refer to the haul road as relevant. The terms of the brief provided in Winten's submissions can be adopted and modified as necessary. Some of the additional documents to be briefed as identified by the Applicant can be added. A brief for the ecologist Mr Doyle is attached as "Annexure B".
Obviously the experts may have their own views on what documents they require and can request additional assistance of the parties as they consider necessary.
As Winten requested, the experts must provide their fees for carrying out the scope of works to the parties, particularly as Winten is responsible for paying these, before work commences so that any issue with these can be raised in advance.
I will specify in this paragraph requirements and timeframes which I expect to be met. I will not make orders at this stage as I do not know the availability of the two experts. The Court's expectation is that the experts will undertake the work as soon as possible in the remaining part of 2021 or early 2022. The Court's expectation is also that the experts will comply with the requirements of expert witnesses in the Court including compliance with the Expert Witness Code of Conduct as specified in r 31.23 of the Uniform Civil Procedure Rules 2005 (NSW). The following requirements and timeframes are specified:
1. Mr Hammond engineer and Mr Doyle ecologist are to produce a report in accordance with the briefs contained in "Annexure A" and "Annexure B" together with any further documents they require within a reasonable time period.
2. The Applicant is to provide the complete brief to Mr Hammond and Mr Doyle within one week of this judgment and advise them of the requirements of expert witnesses before the Court.
3. Mr Hammond and Mr Doyle must provide the Applicant and Winten's solicitor from Dentons Ms Renner with a timeframe for the conduct of any work within two weeks of the complete brief being received by them and a fee estimate at least seven days before work is to commence.
A telephone mention before the end of the court term for the experts to seek clarification, if required, of any aspect of their respective briefs and for the parties to advise when the experts will undertake the work specified above is necessary. If need be formal orders can be made in due course.
There is a need to formalise the outcome of the Applicant's notice of motion dated 27 May 2021 in relation to costs inter alia. The matter is listed for mention on Tuesday 16 November 2021 at 4:15 pm by telephone.
[9]
Annexure A (65954, pdf)
Annexure B (60834, pdf)
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Decision last updated: 16 November 2021