Woolcott Group Pty Ltd v Rostry Pty Ltd

Land and Environment Court (NSW)|2015-02-25|Before: Preston CJ, Ms J

Nature of applications and outcome

Woolcott Group Pty Ltd ('Woolcott') has appealed under s 98(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') to the Court against the determinations of Tamworth Regional Council ('the Council') to grant consent to each of five development applications made by Rostry Pty Ltd ('Rostry') for the construction of poultry farms on five parcels of land near Manilla. The proposed poultry farms are declared to be designated development under ss 4(1) and 77A of the EPA Act and cl 4(1) and Pt 1 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 ('EPA Regulation').
Rostry has, by identical notices of motion filed in each of the five appeals, sought that each appeal be summarily dismissed. The ground for summary dismissal is that Woolcott is not "an objector" within the meaning of that term within ss 4(1) and 98(1) of the EPA Act, as it did not make a written submission to the Council by way of objection to the development applications during the submission period under s 79(5) of the EPA Act, and hence was not a person who could appeal under s 98(1) of the EPA Act. Only a person who is an objector can appeal under s 98(1) of the EPA Act.

The public exhibition, public participation and determination of the development applications

Rostry lodged five development applications for the poultry farms with the Council on 20 December 2013. Rostry proposed to construct five poultry broiler farms, each comprising 14 sheds with a maximum capacity of 588,000 birds. The five farms are to be located on contiguous parcels of land collectively known as "Strathfield", Crow Mountain Road, Namoi River, outside of Manilla. A poultry farm for the commercial production of birds that accommodates more than 250,000 birds is declared to be designated development (Item 21, livestock intensive industries, in Pt 1 of Sch 3 of the EPA Regulation).
Pursuant to s 79(1)(d) of the EPA Act and cl 80 of the EPA Regulation, the Council caused notice of the applications to be published in two newspapers circulating in the locality. The notices were published in the Northern Daily Leader on 18 January and 1 February 2014 and in the Manilla Express on 21 January and 4 February 2014. The notices stated that the applications and accompanying information (including the environmental impact statement) would be placed on public exhibition and be available for inspection at three specified locations (two in Tamworth and one in Manilla) and on the Council's website for a period commencing from 20 January 2014 on weekdays (except for 27 January 2014 which was a public holiday). The notice did not expressly specify the end date of the exhibition period. However, the notice did state that if any person wished to make a written submission, it should "be made prior to 5.00pm on 03 March 2014."
The notice stated that submissions should be addressed to: The General Manager Tamworth Regional Council PO Box 555 TAMWORTH NSW 2340
Pursuant to s 79(1)(c) of the EPA Act and cl 79(1) of the EPA Regulation, the Council caused notice of the application to be exhibited on the land to which the applications related, namely "Strathfield".
Pursuant to s 79(1)(b) of the EPA Act and cl 78(1) of the EPA Regulation, the Council gave written notice to 17 adjoining landholders by letters dated 17 January 2014. The letters contained the same information as the notice published in the newspapers. However, one adjoining landowner, Mr Fernance, was not notified on 17 January 2014. He was notified by letter dated 31 January 2014. The information in the letter to Mr Fernance was the same as the information in the letters dated 17 January 2014 to the other adjoining landowners with one exception. This was that the date by which Mr Fernance was told he must make a written submission concerning the development applications was 5.00pm on 14 March 2014, rather than 5.00pm on 3 March 2014 as had been stated in the letters to the other adjoining landowners.
Pursuant to s 79(1)(a) of the EPA Act, the Council placed the applications and accompanying information on public exhibition at the Council's offices in Tamworth and Manilla and the Department of Planning's office in Tamworth, as well as on the Council's website, commencing on 20 January 2014. The applications and accompanying information were removed from exhibition on the Council's website around 5.00pm on 3 March 2014 and from the Council's offices in Tamworth and Manilla on 4 March 2014. It is not known when the documents were removed from exhibition at the Tamworth office of the Department of Planning.
In addition to these notifications, the Council notified persons who had registered an interest in receiving information about the development applications for the poultry farms at "Strathfield". Woolcott was one person who had registered such an interest. On 17 January 2014, the Council notified Woolcott that "exhibition of the applications will commence on 20 January 2014 and conclude on 03 March 2014" and that the applications and accompanying information will be available for inspection at the three specified locations and the Council's website.
The Council recorded that 80 submissions were received by the Council on or before 3 March 2014 and six submissions were received by the Council after 3 March 2014 (five on 4 March 2014 and one on 12 March 2014).
Woolcott wrote a written submission in the form of a letter dated 27 February 2014 to the Council objecting to the five development applications for the poultry farms on "Strathfield". Woolcott's letter was date stamped by the Council as having been received by the Council on 12 March 2014. I will return to the facts concerning the sending and receiving of Woolcott's submission shortly.
The Council acknowledged receipt of the submissions with respect to the development applications by a letter sent to the person making the submission. The acknowledgement letter was sent either on the day or within 24 hours of the submission being received. The Council's acknowledgement letter sent to Woolcott was dated and sent on 12 March 2014. The acknowledgement letter thanked Woolcott for its submission in relation to the development proposal and advised it that the Council was presently considering the issues raised and would let it know the outcome in due course.
On 9 April 2014, the Council wrote to persons who had made submissions, including Woolcott ('the submitters'). The Council referred to its earlier acknowledgement letter, thanked the submitters for their submissions and notified them of a proposed engagement session with submitters on 28 April 2014 to be held in Manilla. On 17 April 2014, the Council again wrote to submitters, including Woolcott, inviting them to attend "a feedback and engagement session" on 28 April 2014 in Manilla.
On 8 May 2014, the Council wrote to submitters, including Woolcott, advising that the Council had received amended information from the applicant (Rostry) and regulatory agencies and that these documents as well as the summary of submission points and collated notes from the community feedback sessions on 28 April 2014 had been placed on the Council's website.
On 30 June 2014, the Council wrote to submitters, including Woolcott, advising that the development applications will be considered at the Council meeting on 8 July 2014. The Council advised that the meeting will be open to the public and persons were invited to attend and make a verbal representation of up to three minutes. On 8 July 2014, the Council determined to grant consent to each of the five development applications for the poultry farms on "Strathfield" subject to conditions.
Pursuant to s 81(1) of the EPA Act and cl 100(1) of the EPA Regulation, the Council notified Rostry and each of the persons who had made a submission including Woolcott, by letters dated 16 July 2014 of the determination of the development application. In the letter to Woolcott, the Council advised that: Please also be advised that an objector who is dissatisfied with the granting of consent to a development application for designated development (including designated development that is integrated development) may, within 28 days after the date on which notice of the determination was given in accordance with the regulations, and in accordance with rules of court, appeal to the NSW Land and Environment Court.
On 12 August 2014, Woolcott filed appeals against each of the Council's determinations to grant consent to the development applications.

Woolcott's submission to the Council

The facts concerning how and when Woolcott made its submission to the Council were contested. Rostry called evidence from officers of the Council concerning the process for receiving and processing mail, including submissions with respect to development applications (Ms Litchfield, Ms Brooke and Ms Bennett). Rostry also read affidavit evidence of its lawyers attaching documents from the Council's files in relation to the development applications (Mr Shapiro) and documents produced on subpoena produced by Australia Post (Ms Francis). Woolcott called evidence concerning preparing and posting Woolcott's submission (Mr Moore and Mr Rickard) and the postal delivery of Woolcott's submission (Mr Ritchie of Australia Post). From this evidence, I make the following findings as to what occurred.
On the evening of Thursday 27 February 2014, Mr Moore, a director of Woolcott, and Mr Rickard, a development manager who consulted to Mr Moore's property development company, prepared the written submission of Woolcott objecting to the development applications for the poultry farms. Mr Rickard typed the submission as Mr Moore dictated it. The completed written submission was on Woolcott's letterhead and dated 27 February 2014. It was addressed to the Council in the manner that the notices had required, namely: The General Manager Tamworth Regional Council PO Box 555 Tamworth NSW 2340
On Friday 28 February 2014, Mr Moore telephoned Mr Rickard from Woolcott's farm in Gunnedah and reminded Mr Rickard that he needed to post the submission as "it has to get to Council by Monday". Mr Rickard said: "Yep I have it here. I will put it in the express post box before 6pm so that it gets to Council by Monday."
Mr Rickard said that he had a supply of prepaid express post envelopes on hand. He placed Woolcott's submission into a prepaid express post medium envelope. He copied the address from the letter he had typed on to the envelope, namely, the General Manager, Tamworth Regional Council, PO Box 555, Tamworth NSW 2340. Mr Rickard removed the sticker giving the envelope number (60409109104091) from the front of the envelope (which said "sender to keep") and stuck it in his diary for the page for 28 February 2014. Mr Rickard said that he left his office in North Sydney at approximately 4.30pm on 28 February 2014 and dropped the envelope addressed to the Council in a yellow express post box on his way home at Cammeray, Fairlight or North Sydney (he could not recall which one he used) by 6.00pm.
The Australia Post tracking information for the express post envelope no 60409109104091 ('the envelope') establishes that the envelope was collected from the Sydney Metropolitan area and delivered to the Tamworth Post Office on 3 March 2014. In particular, the envelope number was electronically scanned at the Tamworth Distribution Centre at 1.50:47am on 3 March 2014 (event description: "Arrived at facility"), electronically scanned at the Tamworth Post Shop (the Tamworth Post Office) at 5.41:29am on 3 March 2014 (event description: "Awaiting collection at Tamworth Post Shop") and electronically scanned again at the Tamworth Post Shop at 5.42:28am on 3 March 2014 (event description: "Delivered"). Mr Ritchie, Australia Post's National Resolutions Manager, investigated the tracking and delivering of the envelope. He concluded from this tracking information that the envelope was delivered to the Tamworth Post Office and was awaiting collection by the addressee on 3 March 2014. Mr Ritchie said that when an express post article is delivered to a post office it would be usual that the article is addressed to a post office box. Mr Rickard's evidence establishes that the addressee on the envelope was "The General Manager, Tamworth Regional Council" and that the address on the envelope was "PO Box 555, Tamworth NSW 2340".
The Australia Post had also separately confirmed delivery of the envelope. Ms Athanasopoulos, a customer service consultant with Australia Post, emailed Mr Moore of Woolcott on 12 November 2014 saying: "Thank you for your recent enquiry concerning the non-delivery of an article you posted on 28 February 2014 to Tamworth Council. Our records indicate that the Express item 60409109104091 was delivered as addressed on the 03 March 2014."
Together, this evidence establishes that the envelope was delivered to the Council's post office box at the Tamworth Post Office on 3 March 2014 and was awaiting collection by the Council from the Council's post office box.
The Australia Post tracking information also records that at 3.23:30pm on 7 March 2014, the envelope number was manually keyed in by the retail section of the Tamworth Post shop (event description: "Incorrect scan - Currently on hand") and at 3.23:38pm the envelope number was again manually keyed in by the retail section of the Tamworth Post Shop (event description: "Delivered"). Mr Ritchie made inquiries of the Manager of the Tamworth Post Shop about these entries in the tracking information. These inquiries suggested that the envelope was "delivered" on 3 March 2014 but did not reach the intended recipient, the item was returned to Tamworth Post Shop on 7 March 2014, when a notation of "incorrect scan" was entered into the scanning system and the envelope was then "delivered" to the correct address or addressee that day.
Rostry called evidence of three Council officers, Ms Litchfield, Ms Bennett and Ms Brooke, to establish that Woolcott's letter dated 27 February 2014 was date stamped as having been received by the Council at its office in Tamworth on 12 March 2014 and entered into the Council's record system on 12 March 2014. None of the Council officers gave evidence concerning the express post envelope.
Ms Litchfield, the Council's Manager Governance, said that the Council's standard procedure for processing mail delivered to the Council's post office box (PO Box 555, Tamworth) was: (a) Mail is collected from the PO Box by Contractors, Croff Commercial Services, and delivered to the Council at approximately 9am every week day; (b) The mail is to be sorted by 2 or more persons; (c) Before the mail is opened the address on the envelope needs to be checked; (d) The mail is then opened and sorted into four (4) groups: (i) Letters to be registered into TRIM (ii) Invoices (iii) Remittances (iv) Non-registered mail. (e) The letters to be registered into TRIM are given to the Senior Records Clerk or Records Supervisor for action.
Ms Litchfield referred to the different types of stamps used by different departments of the Council. She referred to the two types of stamps affixed to Woolcott's letter of 27 February 2014. She identified one stamp as being the stamp used by the Customer Service Department of the Council when correspondence is hand delivered to the Council, either by being placed in the correspondence box (in the public area of the foyer) or by being handed over at the counter. She said that if mail is delivered to the Council's post office box, it does not go to the Customer Service Department and does not receive such a stamp. Ms Litchfield identified the second stamp on Woolcott's letter as the date stamp used by the Records Department.
Ms Bennett, the Council's Senior Records Clerk, confirmed this procedure for processing mail delivered to the Council's post office box. She also referred to the different stamps used by different departments of the Council. She said that if mail is delivered by the mailing contractor to the mail sorting room it would only receive one stamp (affixed by the relevant department to whom the mail is delivered after being sorted). If a document receives two stamps, it was most likely delivered by hand to the Council.
Ms Brooke, a Development and Approvals Records Officer with the Council, gave similar evidence as to the Council's procedure for processing mail delivered to the Council's post office box and documents received at the Council's front counter or collection box in the foyer. Ms Brooke identified the first stamp on Woolcott's letter of 27 February 2014 as being the stamp used by the Customer Service Department when correspondence is delivered to the Council by being placed in the correspondence box or handed over at the Council. She identified the second stamp as being the stamp that she had stamped on the letter and had completed by marking in pen the document number and "A Faulkner" to indicate that Amanda Faulkner, a Senior Development Assessment Planner with the Council, had responsibility for assessment of the development application. Ms Brooke entered Woolcott's letter as a submission into the Council's record system (TRIM) and marked it as a "late submission".
Rostry submitted that this evidence of the Council's officers established that Woolcott's letter of 27 February 2014 must have been hand delivered, by being placed in the correspondence box in the foyer or by being handed over at the front counter, rather than being delivered to the Council's post office box at the Tamworth Post Office.
I do not agree. The evidence of Mr Rickard and Australia Post is clear that Woolcott's letter was posted in a prepaid express post envelope addressed to the Council at its post office box, and was delivered to the Council's post office box in Tamworth Post Office. Mr Rickard retained the envelope number of the express post envelope and that number was tracked as having been delivered to the Council's post office box. In contrast, there is no direct evidence that Woolcott's letter was hand delivered to the Council by placing it in the correspondence box or handing it over the front counter. Mr Rickard and Mr Moore denied doing so. The only evidence is circumstantial - the fact that a stamp used by the Council's Customer Service Department was stamped onto Woolcott's letter. However, all this stamp establishes is that the letter found its way somehow to the Customer Service Department which stamped the letter with its stamp. It does not necessarily establish how it found its way to that department. To say that the usual way in which documents are received by the Customer Service Department is by being put in the correspondence box or handed over the front counter does not exclude the possibility that a document could be received by some other means (such as being sent internally to that department after the sorting of the mail collected from the Council's post office box).
I do not accept that an inference should be drawn from the circumstance that a stamp of the kind used by the Customer Service Department has been stamped on Woolcott's letter that the letter was in fact hand delivered to the Customer Service Department rather than being mailed to the Council's post office box as the direct evidence established.
It is also relevant that Rostry did not call any evidence concerning the collection of the express post envelope from the Council's post office box and the delivery of the envelope to the Council. No one from Croff Commercial Services, who are contracted by the Council to collect the mail from the Council's post office box and deliver it to the Council, was called to give evidence as to what actually occurred with the mail that was collected and delivered to the Council in the period 3 March to 12 March 2014. Such evidence would have been relevant to explain what happened to the envelope posted by Woolcott on 28 February 2014 and delivered to the Council on 3 March 2014, and why it took until 12 March 2014 before the letter in the envelope was stamped and registered as having been received by the Council. The inference which I draw, in the absence of evidence from a witness from Croff Commercial Services (where the absence has not been satisfactorily accounted for), is that nothing which the witness could have said would have assisted Rostry's case concerning the receipt of Woolcott's submission by the Council.

The statutory requirements for making a submission

Section 79(1) of EPA Act requires the notification and public exhibition of a development application for designated development and any accompanying information (including an environmental impact statement) for a period of time. This period of time is referred to as the "submission period". The submission period is defined in s 79(1)(a). The consent authority must: place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d).
Paragraph (d) provides that the consent authority must: cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality.
Section 79(4) of the EPA Act permits any person to inspect the development application during the submission period: During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them.
Section 79(5) of the EPA Act permits any person to make a submission during the submission period: During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection.
The consent authority is restricted in when it may determine a development application for designated development. Section 80(9) provides: A consent authority must not determine a development application for designated development: (a) until after the submission period (within the meaning of section 79(1)(a)) has expired, or (b) if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Secretary have expired.
Clause 81 of the EPA Regulation regulates the forwarding of submissions to the Director-General: For the purposes of section 80(9)(b) of the Act, the consent authority must, immediately after the relevant submission period, forward to the Director-General (if the Minister or the Director-General is not the consent authority) a copy of all submissions (including submissions by way of objection) received in response to the public exhibition of a development application for designated development.
When the consent authority is able to determine the development application, it is required to take the submissions made during the submission period into consideration in determining the development application. Section 79C(1)(d) of the EPA Act provides: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: … (d) any submissions made in accordance with this Act or the regulations.
After the consent authority determines a development application for designated development, it is required to notify its determination of the development application. Section 81(1) of the EPA Act provides: The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and (b) in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and (c) such other persons as are required by the regulations to be notified of the determination of the development application.
A notice of determination of a development application must contain the information prescribed by cl 100 of the EPA Regulation, including whether the EPA Act gives a right of appeal against the determination to an objector (cl 100(1)(k) of the EPA Regulation). This is a reference to the right that an objector has to appeal under s 98(1) of the EPA Act. Section 98(1) provides: An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application for designated development (including designated development that is integrated development) either unconditionally or subject to conditions may, within 28 days after the date on which notice of the determination was given in accordance with the regulations, and in accordance with rules of court, appeal to the Court.
An "objector" is defined in s 4(1) of the EPA Act to mean: a person who has made a submission under section 79(5) by way of objection to a development application for consent to carry out designated development.

Was Woolcott's submission made during the submission period?

Rostry's motions for summary dismissal of Woolcott's appeals under s 98(1) of the EPA Act depend on Rostry being able to establish that Woolcott did not make its written submission to the Council (by way of Woolcott's letter dated 27 February 2014) during the submission period. Resolution of this issue depends on establishing: first, what was the submission period, secondly, what it means to "make written submissions to" the consent authority during the submission period and, thirdly, whether on the facts, Woolcott made its submission during the submission period.

What was the submission period?

In this case, notice of Rostry's development applications was first published in a newspaper circulating in the locality on Saturday 18 January 2014 (in the Northern Daily Leader). The first weekday after that day was Monday 20 January 2014. The submission period for Rostry's development applications therefore commenced on 20 January 2014. The end date for the submission period for Rostry's development applications was not expressly stated in the notice published in the local newspapers, the notice exhibited on the land, or the notice given to adjoining landholders. However, it is to be implied from the statement in each of these notices that any submission that a person may wish to make with respect to the development applications must be "made prior to 5.00pm on 03 March 2014". I find that the end date of the submission period specified by the notices was 3 March 2014.
As a matter of fact, the development applications and accompanying information were placed on public exhibition, at the three specified locations and on the Council's website, commencing on 20 January 2014 and were removed from public exhibition by 4 March 2014. Ms Faulkner's evidence was that the documents were removed from public exhibition on the Council's website by 5.00pm on 3 March 2014 and physically removed from public exhibition in the Council's offices in Tamworth and Manilla on 4 March 2014.
This period from 20 January to 3 March 2014 inclusive was not less than 30 days, as required by s 79(1)(a) of the EPA Act.
Woolcott submitted, however, that the Council extended the end day of the submission period from 3 March 2014 in two ways. First, Woolcott submitted that the Council extended the end day of the submission period for all persons to make submissions to the Council to 14 March 2014, although the Council gave notice of that extension of the submission period to only one person, Mr Fernance. Secondly, Woolcott submitted that the Council impliedly extended the end day of the submission period for Woolcott to make its submission to the Council to 12 March 2014. For the reasons I give below, I do not accept that the Council expressly or impliedly extended the submission period under s 79 of the EPA Act; it remained as being 20 January to 3 March 2014 inclusive.
As to the first way in which Woolcott submitted that the submission period was extended, Woolcott noted that the Council gave written notice to 17 adjoining landowners on 17 January 2014 advising them that the exhibition period commenced on 20 January 2014 and that the closing date for making a submission with respect to the development applications was 5.00pm on 3 March 2014. However, the Council had omitted to notify one adjoining landowner, Mr Fernance. After this was realised, the Council gave written notice to Mr Fernance on 31 January 2014. This was after the exhibition period had already commenced on 20 January 2014. Accordingly, the Council purported to extend the closing date for Mr Fernance to make his submission until 5.00pm on 14 March 2014 (rather than 5.00pm on 3 March 2014 that had been notified to the other adjoining landowners).
Woolcott submitted that there can be only one submission period under s 79(1)(a) of the EPA Act - there cannot be one submission period for the public and the 17 adjoining landowners of 20 January to 3 March 2014, but a different submission period for Mr Fernance of 20 January to 14 March 2014. Woolcott submitted that the Council had power to extend the submission period that it had previously notified of 20 January to 3 March 2014. However, the Council had no power to extend the submission for one person but not for other persons. The power to extend the submission period cannot be exercised differentially, only universally.
Woolcott submitted that the Council must be taken to have determined to have extended the submission period from 3 March to 14 March 2014. The fact that the Council only notified Mr Fernance that it had extended the submission period to 14 March 2014 was irrelevant. Notification of a decision to extend the submission period is a different and posterior step to making the decision to extend the submission period. Woolcott therefore submitted that the submission period for the purposes of s 79(1)(a) of the EPA Act became 20 January to 14 March 2014.
Rostry disputed that there had been an extension of the submission period from 3 March 2014. Rostry firstly submitted that there could only be an extension of a submission period by giving notice of the extension by publication in the local newspapers, exhibition on the land, and in writing to all of the adjoining landowners, as required under s 79(1)(b)-(d) of the EPA Act and cll 78-80 of the EPA Regulation. Such notification was not done; only Mr Fernance was given notice. Hence, Rostry submitted that any purported extension of the submission period was legally ineffective.
Secondly, Rostry submitted that the term "submission period" is defined under s 79(1)(a) by reference to the placing on public exhibition of the development application and accompanying information. The submission period is the period that these documents are placed on public exhibition. Ms Faulkner's evidence was that this period remained as 20 January to 3 March 2014 inclusive. Although Mr Fernance was notified that he could make a submission with respect to the development applications up to 5.00pm on 14 March 2014, the development applications and accompanying information remained on public exhibition only until 5.00pm on 3 March 2014. Mr Fernance therefore could not have inspected them and made extracts from or copies of them after 3 March 2014 and up to 14 March 2014. Hence, Rostry submitted that the submission period, being defined as the period within which the development applications and accompanying information were placed on public exhibition, remained as 20 January to 3 March 2014.
Woolcott replied that compliance with the notification requirements of s 79(1) of the EPA Act and cll 78 - 80 of the EPA Regulation are necessary when first fixing the submission period (at least because s 79(1)(a) fixes the commencement day of the submission period as being the day after notice was first published in the local newspaper under s 79(1)(d)). However, compliance with the notification requirements is not necessary to extend the end day of the submission period once fixed.
Woolcott also submitted that the submission period must be able to be ascertained independently of when in fact the development application and accompanying information are placed on public exhibition. The consent authority is required to fix and to notify the submission period, because that period determines the period during which the development application and accompanying information must remain placed on public exhibition and be available for inspection by the public (the requirement in s 79(4)) and the period during which the public may make a submission (the requirement in s 79(5)). Compliance with these requirements for public exhibition and making public submissions must be able to be ascertained by reference to a predetermined submission period. The consent authority cannot simply place the development application and accompanying information on public exhibition for whatever period of time it chooses and this period then becomes the submission period for the purposes of s 79(1)(a). The public could not know for how long the development application and accompanying information would in fact be available for inspection and for taking extracts and making copies or what would be the closing date for submissions, until after the development application accompanying information had been taken off public exhibition.
I find that the submission period for Rostry's development applications remained as 20 January to 3 March 2014 and was not extended to 14 March 2014 by the Council's letter notifying Mr Fernance that he had up to 5.00pm on 14 March 2014 to make his submission with respect to Rostry's development applications.
I accept Woolcott's submission that there is power for a consent authority to extend the submission period for the purposes of s 79(1)(a) of the EPA Act. This power can only be exercised so as to extend the submission period universally for all persons and not differentially for one or some persons. There is also only one submission period for the purposes of s 79 of the EPA Act, although this one submission period is used under s 79 for two purposes: first, to fix the period during which the development application and accompanying information must be placed on public exhibition and be available for inspection by the public (s 79(1)(a) and (4)) and, secondly, to fix the period during which the public may make written submissions to the consent authority with respect to the development application (s 79(5)). There cannot be one submission period for public exhibition and a different submission period for making public submissions.
In this case, however, I find that the Council's decision and notice to Mr Fernance permitting him to make a submission up to 5.00pm on 14 March 2014 was legally ineffective to extend the submission period under s 79(1)(a) for Rostry's development applications.
First, the Council purported to have different submission periods, one for the purpose of public exhibition (20 January to 3 March 2014 inclusive) and another for the purpose of enabling Mr Fernance to make his submission (20 January to 14 March 2014). Ms Faulkner's evidence is that, notwithstanding the Council notifying Mr Fernance that he may make a submission up to 5.00pm on 14 March 2014, the exhibition period during which any person (including Mr Fernance) may inspect the development application and accompanying information and make extracts from or copies of them remained as closing at 5.00pm on 3 March 2014. The development applications and accompanying information were taken off public exhibition after 3 March 2014. The Council had no power to fix one submission period for public exhibition (under s 79(1)(a) and (4)) and a different submission period for a person to make a submission (under s 79(5)). Hence, the decision and notice to Mr Fernance purporting to extend the submission period during which he could make his submission, but not to extend the submission period during which the development applications and accompanying information were placed on public exhibition and be available for inspection were outside power; the Council could not legally extend the submission period for one purpose but not another.
Secondly, the Council had no power to fix a submission period during which all persons other than Mr Fernance may make submissions to the Council under s 79(5) but fix a different submission period during which Mr Fernance may make his submission to the Council under s 79(5). There can only be one submission period during which submissions may be made to the Council under s 79(5). I do not draw the inference from the Council's letter to Mr Fernance allowing him until 5.00pm on 14 March 2014 to make a submission with respect to Rostry's development applications, that the Council made a decision of universal application to extend the end day of the submission period under s 79(1)(a) and (5) during which all persons may make a submission with respect to the development applications, to 14 March 2014.
Hence, notwithstanding the Council's letter to Mr Fernance, the submission period under s 79(1)(a) with respect to Rostry's development applications remained as 20 January to 3 March 2014.
The second way in which Woolcott submitted the submission period had been extended was by implication from the Council's conduct in treating Woolcott as a person who had made a submission during the submission period.
The Council registered in its records Woolcott as having made a submission on 12 March 2014 and acknowledged receipt of Woolcott's submission by letter dated 12 March 2014. The Council wrote to Woolcott on 9 April 2014 referring to its earlier letter acknowledging receipt of Woolcott's submission, thanking Woolcott for the time and effort it had given in preparing its submission, noting that the Council had received 80 submissions of objection and seven submissions in support of the proposal, and advising of a proposed engagement session with the submitters on 28 April 2014. Woolcott submitted that the clear indication given by these letters of the Council was that Woolcott was a submitter whose submission had been received in the formal submission period and was therefore invited to a further consultation meeting.
The Council sent a further letter to Woolcott on 17 April 2014 about the feedback and engagement session for submitters with agencies to be held on 28 April 2014.
On 16 July 2014, the Council notified Woolcott of the Council's determination of the development applications by the granting of consent and advising Woolcott that an objector who is dissatisfied with the granting of consent to the development applications has a right of appeal to the Court (under s 98(1) of the EPA Act).
Woolcott submitted that it is clear from this correspondence that the Council treated Woolcott as an objector pursuant to s 4(1) of the EPA Act. If Woolcott's submission was not received by 3 March 2014, but in fact was not received until 12 March 2014, the Council's conduct of treating Woolcott as an objector is only consistent with the Council having impliedly extended the submission period during which Woolcott may make its submission to 12 March 2014.
Rostry acknowledged that the evidence establishes that the Council did in fact treat the Woolcott's letter as a submission and gave it consideration as a submission as part of its overall consideration of the development applications, notwithstanding the Council having received Woolcott's letter after the expiration of the submission period. However, Rostry submitted that that circumstance is an entirely irrelevant consideration in construing the relevant provisions of the EPA Act.
I do not accept that the Council did extend the submission period for Woolcott to make its submission to the Council to 12 March 2014. First, as I have found above, the Council had no power to extend the submission period under s 79 of the EPA Act differentially for different persons. There can only be one submission period during which all persons may make a written submission with respect to the development applications. There cannot be a submission period for all persons other than Woolcott (20 January to 3 March 2014) and a different submission period for Woolcott (20 January to 12 March 2014). Accordingly, I am unable to imply from the Council's conduct that it extended the submission period for Woolcott but not for others.
Secondly, although an extension of the submission period for all persons to make a submission to the Council would have been within power, the Council's conduct relied on by Woolcott does not support drawing the inference that the Council in fact determined to extend the submission period for all persons to 12 March 2014.
Thirdly, even if the Council were to have extended the submission period during which Woolcott may make its submission to 12 March 2014, it did not extend the submission period during which the development applications and accompanying information were placed on public exhibition and available for inspection beyond 3 March 2014. As I have found above, there can only be one submission period during which the development application and accompanying information is publicly exhibited and persons may make submissions. The Council had no power to extend the submission period for one purpose (making submissions) but not for the other purpose (public exhibition). Hence, any purported extension of the submission period during which Woolcott may make a submission to the Council that might be implied from the Council's conduct would be outside power and legally ineffective.
Fourthly, if the Council has not validly extended the submission period under s 79(1)(a) of the EPA Act, the Council's conduct in dealing with any written submission made outside of the submission period cannot cure the fact that the submission was not made during the submission period and hence not made in accordance with the EPA Act: see, by parity of reasoning, Hamill v Brisbane City Council and Pretirement Resorts Pty Ltd [2004] QPEC 030; [2005] QPELR 23 at [8]. It is not legally possible for a person to be an objector, as defined in s 4(1), unless the person has complied with the statutory requirement in s 79(5) of the EPA Act of making a written submission to the consent authority during the submission period: Ballina Environment Society Inc v Ballina Shire Council [1992] NSWLEC 125; (1992) 78 LGERA 232 at 243.

What is the meaning of "make written submissions to" the consent authority?

Rostry submitted that a submission is made to a consent authority under s 79(5) of the EPA Act when it is received by the consent authority. Rostry submitted that it would defeat the scheme for notification and assessment under the EPA Act if s 79(5) were to be construed such as to contemplate a submission being made prior to it being received by the consent authority. There is no sensible objective reference point other than receipt for identifying when a submission has been made.
It cannot be when a person develops an objection to the development application in their mind: National Trust of Australia (NSW) v Minister Administering the Environmental Planning and Assessment Act 1979 (1981) 53 LGRA 37 at 49. It cannot be when the person finishes writing the written submission in respect of the development application (the date of the letter for example). Neither of these dates effect a making of the submission to the consent authority.
Rostry referred to the statutory requirements for dealing with and considering submissions made under s 79(5) of the EPA Act. The consent authority is restricted under s 80(9) of the EPA Act from determining a development application for designated development until after the submission period has expired, or, if a submission is made within the submission period, until after 21 days after the date on which copies of the submissions are forwarded to the Secretary have expired. Clause 81 of the EPA Regulation requires the consent authority, immediately after the expiry of the submission period, to forward to the Director-General a copy of all submissions "received" in response to the public exhibition of the development application for designated development. Rostry submitted that these restrictions can only sensibly operate if, in order for a submission to be made to a consent authority, the submission is received by the consent authority.
Rostry also referred to the requirement in s 79C(1)(d) of the EPA Act that the consent authority must take into consideration any submission made in accordance with the Act. If "made" did not mean "received", the Council would be bound to take into consideration a submission it may never have received or which it may not have received until after its determination of the development application.
Woolcott submitted that a submission is made to a consent authority when it is sent to, not when it is received by, the consent authority. Where the consent authority notifies that submissions may be made to the consent authority by posting to a specified postal address, a submission is made to the consent authority when it is posted, provided it is prepaid and properly addressed. The act of posting the submission to the consent authority constitutes the making of the submission to the consent authority, referring to Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361; (2005) 141 LGERA 343 at [35].
Woolcott drew attention to the different language used in the EPA Act and EPA Regulation. A variety of rights and obligations under the EPA Act are triggered by notices and submissions. The EPA Act draws a distinction between circumstances where the right or obligation arises upon "receipt" of a notice or submission and those that arise from the "making" of a submission: a. Receipt: 79B, 80(6), 97(1)(a), 97AA(a), 98A, 112(d) and (e), 118L(2)(c), 149F(1)(b)(ii) and (c) b. Make: 57(3), 79(5), 89F(3), 112D(2)(b), 113(2), 115L(3), 121H(2), 121I, 121S(6).
Woolcott submitted that the requirements of "making" a submission pursuant to s 79(5) of the Act are consistent with the notice provisions that the Council was to comply with when notifying the development applications pursuant to s 79(1) of the EPA Act which required the Council to: a. Place the DAs on exhibition; b. Give written notice to certain persons; and c. Cause notice to be published in newspapers.
Woolcott submitted that the requirements of notification by the Council is to clearly notify the development applications, however the Council is not required to ensure receipt by a person of the notification. Given the language used in s 79(1) and s 79(5), it would be a curious situation if the Council need not ensure receipt of notice by an objector, but that an objector was held to that higher standard.
Woolcott responded to Rostry's concern about the consent authority not being able to take into consideration under s 79C(1)(d) a submission that has not been received. Woolcott submitted that the legislature intended to use the term "made" rather than "received". The terms of the EPA Act appreciate the risk of a notice or an objection going astray in the post as tolerable in order to effect the policy underlying the statutory scheme. The risk maybe low, but it is not non-existent. The intended result is clearly expressed in the EPA Act and must be given effect.
Woolcott submitted that to construe the terms of s 79(5) to require a submission to be "received" by the Council would undermine the objects of the EPA Act in s 5(c) "to provide increased opportunity for public involvement and participation in environmental planning and assessment". Woolcott submitted that the legislature intended (having to regard to s 5(c) and s 79(4) of the EPA Act) that a person who may wish to make a submission with respect to a development application should have the benefit of the entire submission period to make the submission. If the person had to send the submission to the Council in order to ensure that the submission is received by the Council before the end of the submission period, the person would not have the benefit of the entire submission period within which to inspect the development application and accompanying information and to make extracts from or copies of them.
I agree with Rostry's construction that, under s 79(5) of the EPA Act, a written submission cannot be considered to have been made to a consent authority until the particular mode by which the submission is made to the consent authority has been completed or effected. In most instances, this will be when the submission is received by the consent authority.
I do not consider that this construction is a product of impermissibly substituting for the words in s 79(5) of "make written submissions to the consent authority" words to the effect "written submissions received by the consent authority". As Woolcott notes, the legislature did use the word "make" rather than "received".
Rather, the construction that the making of a submission to the consent authority must be effected and be completed before a submission can be made in accordance with the EPA Act flows from three matters.
First, the requirement in s 79(5) is for a person to "make" a written submission "to" the consent authority. It is not sufficient for a person to "make" a written submission in the sense of writing the submission with respect to the development application concerned; the written submission has to be made "to" the consent authority. In order for a written submission to be made to the consent authority, it must reach the consent authority. The concept of "make … to" is employed in s 79(5) in the sense of "give to" or "serve upon". The written submission must be given to or served upon the consent authority. This cannot occur until the mode by which the written submission is given to or served upon the consent authority has been completed or effected: see, by analogy, Kyogle Shire Council v Muli Muli Local Aboriginal Land Council at [30]-[33].
Section 79(5) does use the discretionary word "may" before "make … to". This is to indicate that a person has discretion as to whether to make a written submission to the consent authority with respect to the development application concerned. Section 79(5) does not require persons to make written submissions to the consent authority. However, if the person chooses to make a written submission, the subsection does require that the written submission be made "to" the consent authority and that it must be made "during the submission period". The subsection is, therefore, a statutory provision of the kind referred to in s 153(1) of the EPA Act, under which a document (a written submission) is required to be given or served upon a person (the consent authority). I will return to this provision when I deal with the factual issue of whether Woolcott made its submission during the submission period.
Secondly, s 79(5) imposes a time period during which this act of making a written submission to the consent authority must be performed, namely "during the submission period". The submission period is defined by s 79(1)(a) and will have a definite end day. Compliance with the time requirement that a written submission by way of objection be made by the end day of the submission period has been held to be mandatory in order for a person to be an objector: Ballina Environment Society Inc v Ballina Shire Council at 239, 241, 243 and National Trust of Australia (NSW) v Minister Administering the Environmental Planning and Assessment Act 1979 at 49.
In order to ascertain whether there has been compliance with this time requirement, there must be some objective reference point. Construing the requirement in s 79(5) that a written submission be made to a consent authority as meaning that it be given to or served upon the consent authority employs an objective reference point. The receipt by the consent authority of the written submission will be proof that the submission was made to (in the sense of given to or served upon) the consent authority. However, statutory provisions such as s 153 of the EPA Act may, upon proof of a different objective act (such as sending by prepaid post), deem the submission to have been given to or served upon the consent authority.
Construing "make … to" in s 79(5) as not requiring that the written submission be given to or served upon the consent authority would make it extremely difficult to ascertain whether the time requirement in s 79(5) has been met. What would be the objective reference point to determine whether a written submission was made during the submission period? It could not be when the person conceives of the submission in their mind or when the person writes the submission. An uncommunicated submission cannot be a submission made to the consent authority. There are also many modes by which a person may communicate the written submission to the consent authority. Each mode of communication has a different starting point and different points along the way until the end point of receipt of the submission by the consent authority is achieved. Which starting point or transit points along the way are to be used to ascertain whether a written submission has been made by that mode of communication during the submission period?
Thirdly, other statutory provisions that depend for their operation on submissions that have been made in accordance with the EPA Act support construing the requirement in s 79(5) that a person make a written submission to the consent authority as meaning that a person give the written submission to or serve the written submission upon the consent authority.
Section 80(9) of the EPA Act restricts a consent authority from determining a development application for designated development until certain time periods have expired. The consent authority is restricted from determining the development application until at least the submission period under s 79(1)(a) has expired. If no submissions under s 79(5) were made during the submission period, the consent authority can determine the development application after the submission period has expired. If, however, submissions under s 79(5) were made during the submission period, the consent authority cannot determine the development application until a period of 21 days after the date on which the consent authority forwarded those submissions to the Director-General has expired. These different time restrictions on when the consent authority may determine the development application depend on ascertaining whether written submissions have or have not been made during the submission period.
The fact that the legislature empowered the consent authority to determine the development application "after the submission period … has expired" if no submissions were made within the submission period, is a legislative indication that the question of whether any submissions were made within the submission period must be capable of being answered immediately after the expiry of the submission period. This would be so if the concept of "make written submissions to the consent authority" in s 79(5) requires that the written submission be given to or served on the consent authority before the expiry of the submission period. Otherwise, the consent authority could not know whether it was able to determine the development application "after the submission period … has expired" under s 80(9)(a).
Similarly, under s 80(9)(b) of the EPA Act and cl 81 of the EPA Regulation, the consent authority is required to forward to the Director-General any submissions made within the submission period. This must be done "immediately after the relevant submission period" (cl 81). The submissions that are required to be forwarded are all submissions "received" in response to the public exhibition of the development application (cl 81). Evidently, the consent authority cannot forward a submission that it has not received. So, the use of the word "received" in cl 81 of the EPA Regulation may simply be a recognition of this fact. However, it is also consistent with the construction of s 79(5) that a submission is not made to a consent authority until the mode by which the submission is made to (given to or served upon) the consent authority is completed or effected. In most instances, this will be when the submission is received by the consent authority.
Section 79C(1)(d) of the EPA Act requires the consent authority, in determining the development application for designated development, to take into consideration "any submissions made in accordance with this Act or the regulations". This is a mandatory consideration that the consent authority is bound to take into account. In order to do so, however, the consent authority must be able to ascertain what submissions have been "made in accordance with this Act or the regulations". Construing the requirement in s 79(5) as requiring that a submission be made to the consent authority during the submission period as meaning that it be given to or served upon the consent authority before the expiry of the submission period provides an objective reference point for the consent authority to ascertain whether the submissions were made in accordance with the Act or the regulations.
It also ensures that the consent authority will be able to take into consideration the submissions that have been so made. In most instances, they will have been received by the consent authority and hence will be able to be considered by the consent authority. If the concept of "make … to" in s 79(5) did not require that the submissions be given to or served upon the consent authority but embraced modes of making that do not achieve the result of the submission being given to or served upon the consent authority, the consent authority could not comply with the mandatory requirement in s 79C(1)(d) to consider "any submissions made in accordance with this Act or the regulations." On this construction, the submissions would have been made in accordance with the Act and so would need to be considered by the consent authority, but not having been given to or served upon the consent authority, they would be incapable of being considered in determining the development application.
Finally, the definition of "objector" in s 4(1) and the right under s 98(1) of a person who is an objector to appeal against a determination to grant consent to designated development, depend on the person having "made a submission under s 79(5)". Construing the requirement in s 79(5) as requiring that the submission be given to or served upon the consent authority during the submission period provides an objective reference point for determining whether a person is an objector and hence has a right of appeal.

Woolcott made a submission during the submission period

I have found that the submission period (within the meaning of s 79(1)(a)) with respect to Rostry's development applications began on 20 January 2014 and ended on 3 March 2014. I have found that Woolcott sent its written submission dated 27 February 2014 by way of objection to Rostry's development applications, by posting it in a prepaid express post envelope properly addressed to the Council (at its post office box) on 28 February 2014. I also find that the envelope, containing Woolcott's submission, was delivered to the Council on 3 March 2014. This last finding has two bases.
First, the evidence of Australia Post is that the envelope was delivered to the addressee (the Council) on 3 March 2014. The delivery of the envelope to the Council's post office box in Tamworth is delivery to the Council: Chen v Minister for Immigration and Border Protection [2013] FCAFC 133; (2013) 216 FCR 241 at [41]. It matters not that the Council did not process and register Woolcott's submission at the Council's office in Tamworth until 12 March 2014. Woolcott's submission was received when it was delivered to the Council's post office box on 3 March 2014.
I do not consider that the two entries in the Australia Post tracking information on 7 March 2014 displace this finding based on the evidence that the envelope was delivered to the Council on 3 March 2014. The onus was on Rostry to prove that, whatever was meant by the entries in the tracking information and whatever happened on 7 March 2014, had the consequence that the envelope was not in fact delivered to the Council's post office box on 3 March 2014. Rostry has not discharged this onus. It did not call evidence from any person of Croff Commercial Services, who collect the Council's mail from the Council's post office box, or evidence from the post office workers at the Tamworth Post Office as to what occurred on 3 or 7 March 2014. In the absence of satisfactory explanation for the absence of these witnesses, I draw the inference that the evidence of these witnesses would not have assisted Rostry's case that the envelope was not delivered to the Council on 3 March 2014.
Secondly, the requirement in s 79(5) that any written submission a person may make with respect to a development application must be made to the consent authority is a requirement that the document be given to or served upon the consent authority. Section 153 of the EPA Act therefore applies.
Section 153(1) prescribes the modes of giving or serving the document concerned. For a person who is not an individual (such as a local council), one of the modes by which a document may be given or served is: by sending it by prepaid post addressed to that person at the address, if any, specified by that person for the giving of notices or service of documents under this Act, or, where no such address is specified, at that person's last known place of business: s 153(1)(b)(ii) of the EPA Act.
Section 153(2) is a deeming provision for a document sent by this mode of prepaid post: A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1)(a)(ii) or (b)(ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.
In this case, Mr Ritchie of Australia Post said that "[p]osting of an express post envelope from the Sydney metropolitan area to a Tamworth post office box has a guaranteed delivery of the next business day". This evidence establishes the time at which Woolcott's submission would be delivered in the ordinary course of post for the purposes of s 153(2). The ordinary course of post for a prepaid express post envelope posted from the Sydney metropolitan area to a post office box in Tamworth is the next business day. Woolcott posted its prepaid express post envelope (addressed to the Council at the post office box notified by the Council for making a submission to the Council) in the Sydney metropolitan area on Friday 28 February 2014 and hence the next business day was Monday 3 March 2014. Section 153(2) therefore operates to deem the envelope (containing Woolcott's submission to the Council) to have been given to or served upon the Council on 3 March 2014, being the time at which the envelope would be delivered in the ordinary course of post.
I do not accept Rostry's submission that s 76 of the Interpretation Act 1987 (or s 160 of the Evidence Act 1995) applies so that the service of Woolcott's submission on the Council is taken to have been effected on the fourth working day after the letter was posted (ie on Thursday 6 March 2014, which would be after the expiry of the submission period on 3 March 2014). As Woolcott submitted, s 76 of the Interpretation Act applies only where there is not a contrary intention in the Act concerned: s 5(2) of the Interpretation Act. In the case of s 153 of the EPA Act, there is a contrary intention. Section 153(2) deems a document sent by prepaid post to have been given or served at the time at which the document would be delivered in the ordinary course of post. This is contrary to s 76(1)(b) of the Interpretation Act that service is taken to have been effected on the fourth working day after the letter was posted. The specific provision in s 153(2) of the EPA Act for determining when a document sent by prepaid post is deemed to have been given or served provides a contrary intention for the purpose of s 5(2) of the Interpretation Act and displaces the statutory presumption in s 76(1)(b) of the Interpretation Act: Kyogle Shire Council v Muli Muli Local Aboriginal Land Council at [42]. Section 153(2) of the EPA Act therefore applies rather than s 76(1)(b) of the Interpretation Act: Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170 at [73], [74].
The consequence of the above findings is that Woolcott made a written submission (by its letter dated 27 February 2014) by way of objection to Rostry's development applications to the Council on 3 March 2014, which was within the submission period. Woolcott was therefore a person who made a submission under s 79(5) of the EPA Act by way of objection to Rostry's development applications for consent to carry out the designated developments of the poultry farms, and hence was an "objector" as defined in s 4(1) of the EPA Act. Woolcott therefore had a right under s 98(1) of the EPA Act to appeal to the Court against the Council's determinations to grant consent to Rostry's development applications.

Estoppel that Woolcott not an objector

Woolcott submitted, in the alternative, that if the Court found that Woolcott had not made its written submission during the submission period, and hence not in accordance with s 79(5), nevertheless the Council and Rostry were estopped from denying that Woolcott was an "objector" pursuant to s 4(1) who may appeal under s 98(1) of the EPA Act. Woolcott submitted that the estoppel arose by the representations of the Council that Woolcott had made a written submission during the submission period in accordance with s 79(5) and was an objector as defined in s 4(1) who the Council had advised had a right of appeal under s 98(1) of the EPA Act.
It is not necessary to determine this alternative claim of estoppel by representation because I have found that Woolcott did make a written submission under s 79(5) during the submission period and is an objector as defined in s 4(1) who has a right to appeal under s 98(1) against the Council's determinations to grant consent to Rostry's development applications.

Conclusion, costs and orders

The finding that Woolcott is an objector as defined in s 4(1) who had a right to appeal, and properly exercised the right to appeal, under s 98(1) of the EPA Act means that Rostry's notices of motion for summary dismissal of Woolcott's appeals should be dismissed.
Woolcott sought an order that, if it were to be successful in defending Rostry's motions for summary dismissal, Rostry pay its costs of the motions. Woolcott submitted that costs should be awarded on an indemnity basis, rather than on a party/party basis. Woolcott had written to Rostry's solicitors on 19 December 2014 asserting that the evidence established that Woolcott's submission was delivered to the Council's post office box on 3 March 2014, and therefore called on Rostry to withdraw its notices of motion by 12 January 2015. Woolcott put Rostry on notice that unless Rostry withdrew its notices of motion by 12 January 2015, Woolcott would make an application for indemnity costs in the event that Rostry was unsuccessful on the motions. Woolcott again wrote on 24 December 2014 requesting Rostry to withdraw its motions for summary dismissal.
Rostry submitted that its conduct in not withdrawing, but instead pressing ahead with, its motions for summary dismissal did not have the required degree of unreasonableness necessary to justify awarding costs on an indemnity basis. Rostry's solicitors replied, by letter dated 24 December 2014, to Woolcott's letters demanding withdrawal of the motions by 12 January 2015. Rostry's solicitors pointed out that no documents had been produced formally by Australia Post, Woolcott's evidence was not due to be filed until after the expiry of the 12 January 2015 deadline and that Rostry was entitled to assess the strength of Woolcott's evidence before responding to Woolcott's demand, and that Rostry's subpoena to Woolcott for documents which directly tested the matters in issue was not returnable until four days after the expiry of the 12 January 2015 deadline. Subsequently, on 4 February 2015, Rostry's solicitors again wrote to Woolcott taking issue with the manner and timing of Woolcott's conduct in filing and serving its affidavits and in not confirming whether Woolcott had completed its evidence, and pointing out that the consequence of such conduct was to delay Rostry in finalising its evidence.
I do not consider that Woolcott has established sufficient grounds for an order for costs to be awarded on an indemnity basis. Rostry's conduct in bringing, preparing for and arguing its motions for summary dismissal of Woolcott's appeals does not have the relevant unreasonableness of action or relevant misconduct so as to justify awarding costs on an indemnity basis.
There should, however, be an award for costs on the usual party/party basis. Although the motions for summary dismissal are brought in Class 1 proceedings, and usually the Court does not make an order for the payment of costs in Class 1 proceedings, the Court has a discretion to do so if it considers that the making of a costs order is fair and reasonable in the circumstances: Pt 3 r 3.7(2) of the Land and Environment Court Rules 2007. Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include where the proceedings, or a motion in the proceedings, involved a question of law or question of mixed fact or law and the determination of the question in one way was potentially determinative of the proceedings and was preliminary to or otherwise has not involved an evaluation of the merits of the application the subject of the proceedings: r 3.7(3)(a). The motion for summary dismissal clearly falls within this circumstance. I consider it is fair and reasonable to make an order that Rostry pay Woolcott's costs of the motions for summary dismissal.
I make the following orders in each of the appeals: 1. Dismiss the first respondent's notice of motion filed on 17 October 2014 for summary dismissal of the appeal. 2. Order the first respondent to pay the applicant's costs of the motion.

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: 27 March 2015

(2005) 141 LGERA 343

(2007) 158 LGERA 170

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