Vincent Land Pty Ltd v Hyder Consulting Pty Limited

Judgment 1Hyder Consulting Pty Limited (Hyder), the First Respondent, filed an amended notice of motion in Court seeking orders that the part of these proceedings commenced against it be dismissed under r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (the UCPR) or be struck out pursuant to r 14.28, and costs. 2Rule 13.4(1)(b) states: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: ... (b) no reasonable cause of action is disclosed, ... the court may order that the proceedings be dismissed generally or in relation to that claim. 3Rule 14.28(1)(a) states: (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, 4Maitland City Council (the Council) granted itself development consent for a waste facility known as the Mount Vincent Waste Facility on 28 June 1991. Hyder, as agent for the Council, lodged a modification application for that consent in accordance with cl 115(h) of the Environmental Planning and Assessment Regulation 2000 (the Regulation), that is, with the Council's consent as landowner. The Council approved the modification application on 22 November 2011 (modification consent). 5Section 96(2)(a) of the Environmental Planning and Assessment Act 1979 (the EPA Act) provides: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), 6The Class 4 summons filed by Vincent Land Pty Ltd (Vincent) on 27 February 2012 seeks numerous declarations and orders including a declaration that the modification consent is void and of no effect (prayer 1). An injunctive order restraining both Respondents from acting in reliance on the consent is also sought (prayer 4). 7The Points of Claim (POC) filed on 22 June 2012 state at par 2, 7 - 17: 2. The First Respondent [Hyder] is an Australian company entitled to sue and be sued under its corporate name and style. ... 7. By way of Notice of Determination dated 28 June 1991, with respect to DA No. 91/117, the Second Respondent [the Council] granted to itself development consent for a waste disposal depot on land described as "Part Lot 220, Part Lot 201 DP 520191, Part Lot 202 DP 523762 at Mt Vincent Road, East Maitland", subject to conditions specified in the said Notice of Determination (the "Original Consent"). ... 10. The height limit of RL 54.5m and the maximum permissible batter slopes of 1 in 5 were imposed by the Original Consent so that the final landform would be consistent with the surrounding countryside and so as to minimise the encroachment of the final landform into the tree line relative to the horizon.. . 11. By reason of the limitations imposed under the Original Consent in relation to height and batter slopes as pleaded in paragraph 10 above, the waste emplacement approved under the Original consent had a volumetric capacity of approximately 1.38 million cubic metres, after requisite adjustments. The Modification Application 12. By way of "Application to Modify a Consent" dated 9 February 2011, made under section 96(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), the First Respondent applied for consent to modify the Original Consent in the following terms "Increase landform height to maximum of RL 65.0m" (the "Modification Application"). 13. The proposal the subject of the Modification Application sought changes to the Original Consent, which would permit: a. an increase in the volumetric capacity of waste emplacement capacity of approximately 890,000 cubic metres; b. an increase in the height of the waste emplacement of a further 10.5 metres above the level of [sic] approved under the Original Consent; and c. the extension of the operational life of the Mount Vincent Waste Facility by a period approximately 11 years. 14. The First Respondent made the Modification Application on behalf of the Second Respondent such that, in effect, the Second Respondent made the Modification Application to itself. 15. The Modification Application was accompanied by a covering letter on the letterhead of the First Respondent dated 1 November 2010 and a document entitled "Maitland City Council, Mt Vincent Waste Facility, DA No. 91117, Modification" dated 22 September 2010 prepared by the First Respondent (the "Hyder Report"). The Modification Application did not comply with cl. 115(1)(g) of the EP&A Reg 16. The Modification Application did not contain an undertaking to the effect that the development, as to be modified, will remain substantially the same as the development that was originally approved, as was required pursuant to clause 115(1)(g) of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation"). 17. In the premises, the Modification Application was not a valid application and the Second Respondent did not have the power to determine the Modification Application and the purported approval of the Modification Application was invalid and of no effect. 8The balance of the POC (par 18 - 198) makes no reference to Hyder. Hyder's amended Points of Defence filed on 2 August 2012 admits par 1 - 6, par 12, parts of par 13 and does not admit another part, admits it made the modification application on behalf of the Council but does not otherwise admit par 14, admits par 15 and denies par 16 - 17 of the POC. In relation to the balance of paragraphs, most are not pleaded against but for par 83, 130, 150, 153, 163, 166, 168 which are not admitted. As stated in Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005 to date at [14.26.20], a "statement of non-admission commonly indicates that the disputed fact is not within a party's knowledge". 9I am informed that the Council and Vincent have reached an agreement and will apply to the Court by consent seeking a declaration that the modification consent is invalid and a consequential order (prayer 4 in the summons). 10Hyder tendered a letter dated 9 October 2012 from its solicitor to Vincent's solicitor advising that there was no basis for making prayer 4 in the summons as against Hyder. 11Vincent read part of the affidavit of Mr Leek, solicitor, dated 5 November 2012 which had the relevant development consent documents exhibited to it. It also tendered a letter from its solicitor dated 28 February 2012 which accompanied the service of the Class 4 summons advising that Hyder was joined as a necessary party given it was the applicant for the modification consent. The letter identified that as an agent for the Council it might be prudent to enter a submitting appearance.