Vincent Land Pty Ltd v Hyder Consulting Pty Ltd

Land and Environment Court (NSW)|2012-05-08|Before: Pepper J

The Applicant Seeks an Order that the Council Furnish a Statement of Reasons 1The applicant, Vincent Land Pty Ltd ("Vincent"), seeks an order that the second respondent, Maitland City Council ("the council"), furnish to it a statement of reasons in accordance with r 4.3(b) of the Land and Environment Court Rules 2007 ("the LEC Rules") in relation to the council's decision to approve a modification application pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 ("the EPAA"), lodged on behalf of the council by the first respondent, Hyder Consulting Pty Ltd ("Hyder"), to modify the council's existing development consent for a waste and landfill facility which the council owns and operates. 2Rule 4.3 of the LEC Rules provides as follows: 4.3 Proceedings for the review of public authority's decision In any proceedings in which a public authority's decision is challenged or called into question, the Court may make one or more of the following orders: (a) an order directing the public authority to make available to any other party any document that records matters relevant to the decision, (b) an order directing the public authority to furnish to any other party a written statement setting out the public authority's reasons for the decision, being a statement that includes: (i) the public authority's findings on any material questions of fact, and (ii) the evidence on which any such findings were based, and (iii) the public authority's understanding of the applicable law, and (iv) the reasoning process that led to the decision, (c) an order for particulars, discovery or interrogatories. 3It is not a matter of controversy that the council, being a local authority constituted under the Local Government Act 1993 is a "public authority" within the meaning of r 4.3(b) (see r 1.3 of the LEC Rules and the definition of "public authority" in s 4 of the EPAA). 4For the reasons that follow, the Court has determined that it is appropriate to order that the council provide a modified statement of reasons for the modification approval decision.

The Council Decides to Modify a Consent to Own and Operate a Landfill Waste Facility 5The factual background to this application was not in dispute. The council owns and operates a landfill waste facility on Mount Vincent Road, East Maitland, known as the Mount Vincent Road Waste Facility ("the landfill facility") pursuant to a development consent (DA 91-117, or the "original consent") which the council granted to itself on 28 June 1991. 6On 21 February 2011 Hyder, acting as agent for the council, made an application to the council under s 96(2) of the EPAA to modify the development consent by increasing the design height and capacity of the landfill in order to extend its operational life ("the modification application"). 7Vincent, which owns land adjoining the landfill facility, was an objector to the modification application and is affected by the modification application. 8On 7 April 2011, ACM Landmark Consultants ("ACM") submitted on behalf of Vincent to the council, Vincent's objections to the proposed modifications to the landfill facility. ACM is the firm employed by Vincent as a town planning and engineering consultancy firm. In total 16 principal objections were raised. In particular, Vincent submitted that the proposal was not substantially the same development as that contained in the original consent and that therefore the use of s 96(2) of the EPAA was inappropriate. This was because the proposal would substantially change the landform by increasing the size of the batters by approximately 1200%. Vincent also noted that the scales on the plans attached to the Assessment Report were sufficiently disparate that it was not possible to accurately quantify the extent of the proposed works. Complaint was also made about the impact of the increase in the height of the waste on placement surfaces. 9The ACM objection was before the council, together with the other objections to the modification application, on 22 November 2011 when the council considered the modification application. 10By way of notice of determination dated 22 November 2011, the council resolved the modification application by the granting of a conditional consent. 11In the minutes of the council meeting on 22 November 2011, the council's resolution immediately followed a recommendation, originally contained in an independent consulting town planning report assessing the modification application that was before the council, that the modification application be approved. It was recorded as follows: COUNCIL RESOLUTION THAT Section 96 Modification to DA 91-117 for an increase in the capacity of the waste facility on Lot 201 DP 520191 and Lot 2220 DP1095387, Mt Vincent Road, East Maitland be approved, subject to the conditions of consent set out in the attached schedule. Moved Clr Mudd, Seconded Clr Procter CARRIED The Mayor in accordance with Section 375A of the Local Government Act 1993 called for division. The division resulted in 12 for and 0 against, as follows For:Against Clr Baker Clr Blackmore Clr Fairweather Clr Garnham Clr Geoghegan Clr Humphery Clr Meskauskas Clr Mudd Clr Penfold Clr Procter Clr Tierney Clr Wethered 12Conditions were attached to the modification approval, which were contained in the Notice of Determination. The statement of reasons accompanying the imposition of the conditions was in these terms: Reason for Condition(s) The following condition(s) have been applied to the development, subject of this consent, to ensure that the development meets the requirements of the NSW Environmental Planning and Assessment Act 1979, the NSW Environmental Planning and Assessment Regulation 2000 and the various polices and development controls of Maitland City Council and other government agencies relevant to the development being undertaken. 13On 27 February 2012 Vincent commenced judicial review proceedings by summons filed in Class 4 of this Court's jurisdiction. 14The relief claimed by Vincent with respect to the s 96 modification application decision is relevantly as follows: Section 96 Modification dated 22 November 2011 to DA 91-117

A declaration that the purported consent granted by the second respondent to the first respondent pursuant to section 96 of the Environmental Planning and Assessment Act 1979 with respect to land described as "109 Mt Vincent Road, East Maitland, Lot 220 DP 755237", being the subject of the Notice of Determination dated 22 November 2011 for modification of development consent DA 91-117 (the "Section 96 Consent"), is void and of no effect.
A declaration that the development purportedly approved under the Section 96 Consent is "designated development" for the purposes of s 77A of the Environmental Planning and Assessment Act, being a "waste management facility: within the meaning of clause 32 of Schedule 3 to the Environmental Planning and Assessment Regulation 2000.
A declaration that, for the purposes of s96(2) of the Environmental Planning and Assessment Act, the development purportedly approved under the Section 96 Consent is not substantially the same development as that which was approved pursuant to development consent DA 91-117 the subject of Notice of Determination dated 28 June 1991 (the "Original Consent"). 15Consequential orders restraining Hyder and the council from carrying out any works in reliance on the s 96 modification consent are also sought. 16Vincent further seeks a declaration that the council has contravened, and continues to contravene, various conditions of the original consent, together with remedial relief. 17In addition, Vincent seeks a declaration that a section of Mt Vincent Road constructed by the council in connection with the landfill facility has been built on land owned by Vincent. Again, remedial relief is sought in relation to this claim. 18On 23 March 2011, at the first return date of the summons, Vincent sought an order that the council provide a statement of reasons in accordance with r 4.3(b) of the LEC Rules. On that occasion, Craig J made orders for the filing of a notice of motion seeking the order. The council indicated that it would oppose the making of the order. 19Vincent relied on an affidavit of Mr Mark Leek sworn 3 April 2012. Mr Leek is the Senior Principal of ACM and the author of the objection made by ACM on behalf of Vincent to the proposed modification application. 20Exhibited to Mr Leek's affidavit was: (a) a copy of the modification application lodged by Hyder to the council; (b) a copy of an Assessment Report prepared by the independent town planner engaged by the council to assess the modification application; (c) a copy of the minutes of the council meeting of 22 November 2011; and (d) a copy of the Notice of Determination issued by the council on that date approving the proposed modifications subject to conditions.

The Modification Application 21The application to modify the original consent was accompanied by a detailed DA Modification Assessment Report prepared by Hyder on 1 November 2010. 22The Introduction to the Assessment Report set out the need for the activity. Regard was had to the statutory context. In particular, the Report considered whether or not the proposed modifications constituted "designated development" under Sch 3 Pt 2 cl 35 of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations"). 23Clause 35 of the EPA Regulations states: 35 Is there a significant increase in the environmental impacts of the total development? Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development. 24In forming an opinion as to whether or not development constitutes designated development, the council had to consider the matters set out in cl 36 of the EPA Regulations. The Assessment Report noted that cl 36 of the EPA Regulations required the council to form this opinion having regard to a range of factors. These factors were assessed by Hyder in the Report and presented in a table format. 25Section 3 the Assessment Report noted that a range of environmental management measures set out in Section 6 of the Plan of Management had been considered in relation to the proposed modification. While the Plan of Management was not annexed to the Assessment Report, the environmental management measures dealing with the potential adverse impacts of the proposed modification were assessed and presented in a tabular format. Discussion then followed on the impacts of the proposed modifications. 26Appended to the Assessment Report were the DA Modification Plans. It was Mr Leek's understanding that these were the plans that were before the councillors at the council meeting of 22 November 2011. The appended plans were A4 size copies of the original plans. This, Vincent submitted, precluded any real appreciation, and therefore any proper assessment, of the impact of the proposed modifications, particularly insofar as they related to Vincent.

The Town Planning Consultant's Report 27Also before the council on 22 November 2011, was a report by Mr Tibor Kovats, an independent town planning consultant engaged by the council to assess the s 96 modification application ("the Kovats Report"). 28The Executive Summary to the Kovats Report stated as follows (emphasis added): Executive Summary Consent for the Mount Vincent Road Waste Facility was granted in 1991. Operations commenced in 1993. At the time of commencement it was estimated that the Facility would be in operation for 36 years. However, a higher than expected till rate, largely a consequence of the actual rates of population growth within the City of Maitland have reduced the estimated timeframe by 14 years. This proposal seeks to modify the consent granted in 1991. In 1991 the approved development was descried as an operation that involved filling and gradual land forming to a final height of 54.4 metres above the Australian Height Datum (AHD). The current application seeks a modification of the consent to permit the final design level to 65 metres AHD. As a result, the landfill is expected to remain in operation until 2019. This will allow for a more adequate lead time for planning and implementation of a medium to long-term waste management strategy for the City of Maitland. The landfill is integrated development requiring an Environment Protection Licence (EPL) under the Protection of the Environment Operations Act 1997 and approval under the Mines Subsidence Compensation Act 1961. the office of Environment and Heritage (OEH) has raised no objection and the Mines Subsidence Board (MSB) have given conditional approval to the proposed modification. The application was advertised for public comment and 6 individual objections were submitted. The main issues identified in the assessment and/or raised in the submissions concern the potential increase in environmental effects - visual impact, noise, dust, odour, airborne litter, stormwater, leachate and traffic. One submission also raised concerns with the modification on the grounds that it would result in a development that is not substantially the same as the original development and that the modification constitutes a designated development. The modification is assessed as being substantially the same development as originally approved. The environmental impact is not being increased to a significant degree and impacts can be managed through the existing operational and monitoring procedures, including the licensing of the operations overseen by the Office of Environment and Heritage. The proposed works cannot commence until approval has been granted to a variation of the Environment Protections Licence. It is recommended that the modification be approved, subject to conditions of consent. Officer's Recommendation THAT Section 96 Modification to DA 91-117 for an increase in the capacity of the waste facility on Lot 201 DP520191 and Lot 2220 DP1095387, Mt Vincent Road, East Maitland be approved, subject to the conditions of consent set out in the attached schedule. 29The Kovats Report commenced with a site description and a description of the proposed development modification. It stated that "the landform shape, constructed at an approximate 1 in 4 gradient with a relatively flat platform at the final level will not change. The general nature of the operations and activities at the Facility are also not proposed to change" (emphasis added). 30The Kovats Report noted that the application was supported by the Assessment Report by Hyder which "assess[es] potential changes in environmental impact due to the change in height in the landfill as minor. The assessment includes visual impact, the potential to increase windborne litter, landform stability and leachate production at the Facility" (emphasis added). 31Vincent took issue with these descriptions and submitted that, because no reasons had been provided by the council in approving the modification application, it was not clear, for example, whether the council accepted that the landform shape would not change or if an assessment of the visual impact of the proposed modification had taken place. 32Vincent also took issue with the statement in the section entitled "Background" in the Kovats Report that "there have been no non-compliances [with the Environmental Protection Licence pursuant to which the facility operates] recorded since 2004". Because this was a statement that Vincent believes to be incorrect, in order to challenge the approval decision, Vincent contended that absent any reasons provided by the council, it did not know whether the council had taken this statement of fact into account in making its decision to approve the modification application. 33Similarly, Vincent stated that it wanted to know whether or not the opinion expressed in the Kovats Report that the proposed modifications did not render the landfill facility designated development under the EPA Regulations was taken into account by the council. Likewise, it was not known whether or not the council had considered the assessment in the Kovats Report of the matters referred to in s 79C of the EPAA. 34Finally, Vincent submitted that, absent confirmation by the council, it did not know whether or not the council had adopted the views expressed in the Kovats Report that cl 123 of the State Environmental Planning Policy (Infrastructure) 2007 had been fulfilled and that the landfill facility was appropriately located and operated pursuant to that planning instrument. 35Some, but not all, of these matters were, albeit indirectly, alluded to in the relief sought in the summons. But, Vincent submitted, in order to properly and efficiently plead its claim it was entitled to know with greater precision the matters that the council had considered in resolving to approve the modification application.

Vincent Seeks Reasons From the Council 36The position of Vincent may be succinctly put: (a) first, r 4.3 of the LEC Rules is a beneficial provision designed to work in the public interest, the purposes of which include to enable the existence of legal error made by a decision-maker to be more readily perceived than otherwise might be the case, and to engender confidence in the community that the decision-maker has gone about his or her task lawfully. Thus, Vincent emphasised the centrality of the importance of a decision-maker in furnishing reasons; (b) second, a wide sphere of operation should be accorded to r 4.3 in order to overcome problems generated in relation to judicial review applications where a decision-maker does not identify his or her reasoning process, thereby resulting in an applicant having to demonstrate by inference that a particular matter has or has not been taken into account; (c) third, applying existing case law, there is no difficulty in ordering a collegiate body, such as the council, to provide reasons pursuant to the rule; (d) fourth, as a matter of efficiency and costs, to avoid multiple amendments to a pleadings, or worse, a multiplicity of proceedings, the reasons should be provided before points of claim are filed; and (e) fifth, in the present case, where the proponent was also the decision-maker, Vincent submitted that the Court ought to be particularly concerned with ensuring transparency in the decision-making process as an aspect of engendering confidence that the council had gone about its task unaffected by error. 37Finally, in respect of the reasons given for the imposition of the conditions, Vincent contended that these had not been properly provided by the council given the high level of generality at which they were expressed. I agree.

The Council Claims the Provision of Reasons is Premature 38The council accepted that the Court has the power to order a collegiate body such as a local council to provide a statement of reasons pursuant to r 4.3(b) of the LEC Rules (Charlton v Moore (No 2) [2009] NSWLEC 47). However, the council submitted that the Court should decline to exercise its power in the particular circumstances of this case because: (a) first, the issues in dispute had not yet been identified by Vincent, no points of claim having yet been filed; (b) second, the council had provided "voluminous documents" to Vincent by way of informal discovery. These documents included the material that was before the council at the time the decision was made on 22 November 2011; (c) third, as the affidavit evidence of Mr David Simm sworn 3 May 2012 (Mr Simm is the Manager of Development and Environment for the council) and the affidavit of Mr Stuart Simington sworn 27 April 2012 (the solicitor engaged by the council) demonstrated, there were real difficulties in providing a statement of reasons in circumstances where seven out of the twelve councillors no longer had an independent recollection of the matters they had taken into account when determining the modification application, and where the cost of obtaining individual statements from each councillor as to their reasons for approving the proposed modifications would cause the council to incur significant costs (estimated to be approximately $20,000); and (d) fourth, to order reasons would not be to facilitate the "just, quick and cheap" resolution of the real issues in dispute in the proceedings pursuant to s 56 of the Civil Procedure Act 2005 ("CPA"), particularly when these issues were not presently known and when regard was had to the fact that the cost to the council in complying with such an order could be disproportionate to the potential importance and complexity of the subject matter currently in dispute (s 60 of the CPA). 39Accordingly, the council submitted that this application was premature and that, at the very least, if it was to be made at all, it should be made after the pleadings had closed. 40The council noted that Vincent had at no point prior to today, actually requested the council to furnish reasons or to indicate what material it had considered in making its decision. In my view, it is regrettable that an informal attempt to resolve this matter, thereby avoiding the need for a formal application, was not made.

Legal Principles to be Applied in Making an Order Under Rule 4.3 41Rule 4.3 was inserted into the LEC Rules in 2007 upon the enactment of a new set of procedural rules replacing the former Land and Environment Court Rules 1996. It is in very similar terms to paragraph [23] of the Supreme Court of New South Wales Practice Note SC CL 3 Administrative Law List, in relation to which there is curiously scant relevant case law. 42There being no equivalent of s 13 of the Administrative Decisions (Judicial Review) Act 1975 (Cth) ("the ADJR Act") in this State (unlike Queensland or Tasmania), the enactment of r 4.3(b) alters the common law position to the extent that it is generally accepted that there is no common law obligation on administrative decision-makers to provide reasons for their decisions (Public Service Board (NSW) v Osmond [1987] HCA 7; (1986) 159 CLR 656). Rule 4.3(b) does not, however, go as far as s 13 of the ADJR Act, which creates a statutory right to obtain a statement of reasons regarding decisions that are reviewable under that Act, irrespective of whether or not an application for judicial review has been made. 43There can be no doubt as to the beneficial nature and intent behind r 4.3. A statement of reasons is significant in assisting individuals to assess whether or not an administrative decision can or should be challenged by the institution of judicial review proceedings. The rule also promotes transparency and accountability at all levels of government decision-making, which in turn enhances the legitimacy of those decisions. 44In Charlton Biscoe J made the following observations in this regard (at [16]-[18]): 16 The beneficial nature of such provisions is manifest. In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 at 130 Gummow J said of s 13 of the Administrative Decisions (Judicial Review) Act: "Section 13 of the ADJR Act is a remedial provision in that the duty for which it provides stands in high contrast to the apparently very limited obligations at common law of a decision-maker to furnish reasons...Brennan J recently observed (Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 60 ALJR 698 at 720-721) that the ADJR Act removes what would otherwise have been procedural obstacles to discovery of the grounds on which discretions have been exercised. The policy which s 13 implements is (as Lockhart J explained in Dalton v Deputy Commissioner of Taxation (NSW) [1985] FCA 298; (1985) 7 FCR 382 at 391-392) to provide any citizen having sufficient interest in the matter with material to assist him in determining whether there is any error in the process of reasoning of the decision-maker and, accordingly, to chart his future course of action...Section 13 is not to be construed grudgingly or with a penchant for technicality." 17 The importance of the provision of reasons was similarly acknowledged in relation to a collegiate public body, the Pharmaceutical Benefits Remuneration Tribunal, in Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65. That tribunal was constituted by a chairperson and at least two additional members. Sheppard J said at 88: "The provision of reasons is an important aspect of the tribunal's overall task. Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal's conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A primary purpose is the disclosure of the tribunal's reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration. There is yet a further purpose to be served in the giving of reasons. An obligation to give reasons imposes upon the decision-maker an intellectual discipline...". 18 These comments echo those of Kirby P in Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 468 (Priestley JA agreeing) as to the importance of reasons. 45This sentiment was repeated by his Honour in Shellharbour City Council v Minister for Planning [2011] NSWLEC 59 (at [13]) and was earlier expressed by Sheahan J in Hooper v Port Stephens Council & Hallett [2010] NSWLEC 41 (at [10]). 46In Hooper, however, Sheahan J went on to stress the following (at [11]): 11 The discretion should not be lightly exercised as it can impose a serious burden on public and collegiate bodies. 47I agree with this observation, which is apposite in the present application. 48It must further be borne in mind that a consent authority is not required to give reasons for an approval. The only obligation upon a consent authority to give reasons in this context is upon the refusal of a development or modification application or in the imposition of conditions pursuant to an approval (s 81 of the EPAA and cls 100(1)(c) and 122(2) of the EPA Regulations). 49Given the open standing provisions under the EPAA permitting challenges to decisions of public authorities, I do not accept, as Vincent suggested, that in every case where a council does not provide reasons for the making of a determination and a summons has been filed in this Court seeking no more than declaratory relief in the barest of terms that the determination is invalid, the Court must accede to any application for reasons to be furnished pursuant to r 4.3(b). 50It is a regrettable fact of litigation that proceedings are commenced against public authorities that enjoy no prospect of success by persons not directly affected by the decisions of those authorities and for whom the sanction of an adverse costs order is meaningless. In many instances it would be unjust, having regard to the principles contained in ss 56-60 of the CPA, to put such an authority to the expense and inconvenience of providing a statement of reasons prior to the claim being fully articulated, if at all. 51In Hooper the applicant, who was self-represented, challenged the validity of a development consent granted under Pt 4 of the EPAA. The applicant had filed points of claim, however, these were struck out. In that case, Sheahan J ordered the council to provide reasons pursuant to r 4.3 but the application to strike out points of claim and to provide reasons were heard concurrently. Thus, even though the points of claim were ultimately struck out, there was sufficient information contained in the summons and the impugned points of claim to understand the alleged failure by the council to take into account the matters Mr Hooper claimed gave rise to invalidity (Hooper at [5], [13], [38] and [39]). 52It should also be noted that an earlier application had been made by Mr Hooper before Biscoe J that the council provide a statement of reasons. His Honour rejected that application stating that he was "not persuaded that it is appropriate at this stage on the information at the moment before the court to direct Port Stephens Council to furnish written reasons for its decision" (Hooper at [37]). 53In Charlton there was a challenge to the decision of a council to change the terms of the appointment of an acting general manager. Points of claim had been filed and an amendment to them was proposed during the course of the hearing. The grounds of challenge were, therefore, plain. The application sought an order under r 4.3(b). The objection to the provision of a statement of reasons centred on the suitability of any application of r 4.3 to a collegiate body such as a local council. No difficulty in the council providing a statement of reasons was presented to the Court. Biscoe J held that there should be no hesitation in exercising the discretion to order reasons under r 4.3 merely because the public authority is a collegiate body such as the council in question (at [19]). Accordingly, his Honour ordered that a statement of reasons be provided. In doing so, however, Biscoe J moulded the order so that the statement setting out the council's reasons for the decision could be to the best of its knowledge, information and belief, or that of a person providing the statement on the council's behalf (at [22]). 54Shellharbour City Council concerned a challenge to the validity of an approval granted by the relevant Minister under Pt 3A of the EPAA. The Court specifically dealt with the issue of whether a statement of reasons should be ordered prior to the filing of points of claim. The Court opined that (at [11] and [13]): 11 Directions pursuant to the Class 4 Proceedings Practice Note have been made by this Court in Charlton and in Hooper v Port Stephens Council [2000] NSWLEC 41 (Sheahan J). In both cases a local council was ordered to provide a statement of reasons for its decision. The respondents contend that the Court should not make directions before the applicant has filed its points of claim. However, in Hooper the council was directed to provide the statement of reasons before the applicant was directed to file amended points of claim (earlier points of claim having been struck out). ... 13 Both the Land and Environment Court and the Supreme Court Practice Notes require relevant documents to be made available and a statement of reasons to be provided to the applicant. The purposes of these requirements include: to enable the existence of a legal error made by the decision-maker to be more readily perceived than otherwise might be the case; and, to engender confidence in the community that the decision-maker has gone about their task lawfully: see the authorities reviewed in Charlton. Therefore, relevant documents and reasons may inform an applicant's case. This is consistent with [14] of the Class 4 Proceedings Practice Note. In the present case, there seems little point in requiring the applicant, who seeks document and reasons, to plead before seeing them, for it then may only have to amend. 55In that case, the Court was prepared to mould the terms of the direction so that, in circumstances where the current Minister was no longer the person who granted the approval because of a recent change in government, reasons and relevant documents ordered to be provided were only to the best of the Minister's knowledge, information and belief (at [16] and [17(4)]). 56In the present case, Vincent is legally represented by competent solicitors and counsel. Although not a party to the decision made by the council on 22 December 2011, it is nevertheless, as the ACM objection demonstrates, an entity that is directly affected by the decision. Moreover, the summons filed in the Court sets out the relief claimed in detail and provides more than the barest of bases for setting aside the modification approval. In these circumstances, it cannot be said that if the Court were minded to order the council to provide a statement of reasons that this would open the floodgates to unmeritorious applications pursuant to r 4.3 of the LEC Rules in the future. 57Vincent relied on Austral Monsoon Industries Pty Ltd v Pittwater Council ([2009] NSWCA 154 (at [98]); (2009) 75 NSWLR 169 (at [100]-[101])) and Caroona Coal v Coal Mines Australian (2010) 172 LGERA 25 (at [70]) as illustrations of the difficulty in judicial review applications of identifying the reasons for a decision where a decision-maker does not articulate the reasoning process involved. 58In Austral Monsoon criticism was made of the applicant, who sought to establish by inference that the Minister's decision had been made for a collateral purpose. The Court held that the Minister's purpose in making the decision would have to be established in some other way. In particular, it referred to the mechanism in paragraph [23] of Supreme Court Practice Note SC CL 3 (at [100] and [101]). 59But Austral Monsoon and Caroona were decisions concerning the appropriate proof to be adduced in claims for judicial review, whereas, in the present case, Vincent seeks the aid of r 4.3 of the LEC Rules in order to properly plead its case. While I am cognisant of, and agree with, the comments made in those decisions, they do not of themselves provide a basis for the order Vincent seeks. 60One final observation must be made. I do not accept that, merely because the council is the proponent to the modification application, that the Court should much more readily, as was submitted by Vincent, exercise its discretion and order that the council furnish a statement of reasons. As was noted during argument, the fact that a local council is also a proponent to a development or modification application is not an uncommon occurrence. Local councils are engaged in a wide range of development activity for the benefit of the public in their particular local government area. The modification application in question is a good illustration of this. I am mindful of the fact that, in the present case, the assessment of the modification application was given to an independent consultant to report on. Having noted this, I accept, however, that this is a factor that should be considered in the exercise of my discretion under r 4.3. Put another way, the fact that the council granted approval to itself is not an irrelevant consideration in the exercise of my discretion under r 4.3.

The Council Must Provide a Modified Statement of Reasons 61In my opinion it is appropriate that the council be ordered to provide a circumscribed statement of reasons in respect of the modification approval. Vincent's claim for relief does not, at least on the material before the Court at this stage, appear to be hopeless and I am persuaded that providing reasons prior to the filing of points of claim will facilitate the efficient use of the parties' time and resources. Otherwise, the spectre of multiple amendments to the pleadings looms large in this instance. 62But I am not convinced that a statement of reasons in the form sought by Vincent, namely, including all of the matters set out in r 4.3(b)(1)(i)-(iv), is suitable in light of the uncontested evidence before the Court as to the difficulties, including the cost, of providing a comprehensive statement of reasons. Accordingly, a modified statement of reasons should be ordered. 63In arriving at this conclusion, I nevertheless accept the criticisms made by Vincent of the material Mr Simington relied upon to conclude that seven of the twelve councillors had no independent recollection of the matters they took into account when determining the modification application. The questionnaires sent to the councillors upon which this figure is based resulted in answers that were, at best, entirely equivocal. To question each councillor "whether you have any independent recollection of the matters you took into account when determining the s96 application?" is, without more, of limited assistance. In addition to the inherent ambiguity surrounding the term "independent recollection", it is not clear whether, for example, the councillors were furnished with the Assessment Report or the Kovats Report in order to refresh their memory. It does not appear that they were. Had this material been provided, the answers given may have been very different. 64In my opinion, it will be adequate if the statement to be provided by the council is one setting out, to the best of the council's - or a person authorised to provide a statement on the council's behalf - knowledge, information and belief, the reasoning process that led to the council's approval of the s 96 modification application. Further, and although not specifically requested by Vincent, in my view, the statement of reasons should include a list of all the material that the council took into account in making the decision.

Costs 65Vincent has endured partial, but not total, success with respect to the order it has sought. In these circumstances, I am of the opinion that the appropriate order with respect to the costs of the application is that they be costs in the cause.

Orders 66In addition to the order above, it is appropriate that further directions be given for the preparation of this matter for hearing. 67The Court therefore orders: (1) the second respondent to provide to the applicant by 5 June 2012, a statement in writing setting out to the best of the second respondent's - or a person authorised on the second respondent's behalf - knowledge, information and belief, the reasoning process that led to the second respondent's approval of the s 96 modification application, together with a list of all of the material considered by the second respondent in making that decision; (2) the applicant to file and serve its points of claim by 26 June 2012; (3) the respondents to file and serve their points of defence by 9 July 2012; (4) the matter to be stood over for further directions to 13 July 2012 before the List Judge; (5) the costs of the motion to be costs in the cause; (6) the exhibits to be returned; (7) the subpoenas issued by the applicant to "Hyder Consulting Pty Limited", "Parsons Brinckerhoff Australia Pty Limited" and "Tibor Kovats" on 6 March 2012, to be stood over to 13 July 2012; and (8) liberty to restore on three days' notice

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2012

Administrative Decisions (Judicial Review) Act 1975(Cth)

(2009) 166 LGERA 436

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